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Dancing baby vs. YouTube-Prince case set to go to trial

A judge rules that a jury will decide on the legal battle between Universal Music and a mother who posted a YouTube video of her children dancing to a Prince song.

Dara Kerr Former senior reporter
Dara Kerr was a senior reporter for CNET covering the on-demand economy and tech culture. She grew up in Colorado, went to school in New York City and can never remember how to pronounce gif.
Dara Kerr
2 min read

The woman who posted a video of her children dancing to the Prince tune "Let's Go Crazy" and has since waged nearly a six-year legal fight with Universal Music Group over the clip, may see her day in court.

US District Judge Jeremy Fogel ruled today that a summary judgment will not decide this case, which means that if the two parties don't settle, this lawsuit will proceed to a jury trial.

The whole suit got started in 2007 when Prince asked YouTube to remove the clip of the dancing boys. When the clip got scrubbed, the baby's mother, Stephanie Lenz, cried foul and filed suit asking for damages. The woman's lawyers at the Electronic Frontier Foundation (EFF) say the dancing-baby clip is the poster child for "fair use."

However, in 2008, Fogel threw out Lenz's suit against Universal, calling Lenz's argument that Universal was misusing its copyright weak. But EFF rapidly filed a second complaint just 10 days later. Later that same year, Fogel threw Lenz a lifeline and didn't yank the case again; instead, he gave more weight to the concept of fair use.

Now, Fogel said that if the two sides can't come to a truce, a jury will have to decide what is fair use.

"As the Ninth Circuit recently has observed, the process of making a fair use determination 'is neither a mechanistic exercise nor a gestalt undertaking, but a considered legal judgment,'" wrote Fogel.

At the same time, Fogel wrote that EFF will have to prove "a demonstration of some actual knowledge of misrepresentation" on the part of Universal.