By Jack Vidovich
On January 29, Prince dropped a $22 million infringement suit against several parties he accused of recording live performances of the star and uploading them to the Internet. His decision comes a mere two weeks after the artist’s complaint was initially filed in San Francisco federal district court, in which he requested $1 million from each of the twenty-two infringers. Though as TMZ points out, Prince still has the opportunity to refile his complaint, there is nothing to indicate that he will.
Prince expressed concern that his performances were showing up on social media platforms such as Facebook. But since the suit was filed, the parties who have posted the videos have removed them. According to Prince’s attorney, “We recognize the fans[’] craving for as much material as possible, but we’d prefer they get it from us directly than from third parties who are scalpers rather than real fans of our work.” Thus with the unauthorized videos no longer on the Web, Prince and his attorney seem content to settle for this form of indirect takedown, rather than collect damages.
The artist has a history of policing his intellectual property and is no stranger to suing those who use his works without his prior authorization. According to the ABA Journal, “The Star Tribune reports that, in 2007, he was one of the biggest names to take on free download site The Pirate Bay, which was subsequently banned by Internet providers worldwide.” That same year, a YouTube video featuring a baby dancing with Prince’s “Let’s Go Crazy” on in the background was the heart of a takedown dispute in Lenz v. Universal Music Corp. Though this case has currently been appealed up to the Ninth Circuit, the district court at least ruled that Universal’s issuance of a takedown was improper because it did not perform a good faith fair use consideration.
This pending case may explain, at least in part, Prince decision to file an infringement suit and settle for no damages rather than file a takedown request. Fair use is a difficult area of copyright law, and what constitutes a good faith fair use analysis is equally unclear. Thus a takedown option, steeped in this uncertainty, may be a pernicious choice, especially if falsely applying it may result in a counterclaim for misrepresentation. The safer option then is to make the more concrete infringement claim, scare the parties with high damages, and get the affects of the takedown without the fear of retribution. Hopefully a resolution to the Lenz case will bring some certainty back to the field of takedown notices, and not force attorneys to take such circumspect measures.