Legal Implications of User Generated Content: YouTube, MySpace ...

In July, a YouTube user sued Universal Music Publishing Group (“Universal”) formisrepresentation under this section. 39 The plaintiff, Stephanie Lenz, is aprofessional editor from Gallitzin, Pennsylvania. Earlier this year, Lenz posted avideo from YouTube that showed her child dancing to a slightly audible Prince songplaying in the background. Universal sent YouTube a takedown notice and thevideo was removed. Lenz then sent YouTube a counter-notice and the video wasultimately reposted to the website. Lenz sued Universal for misrepresentation under§ 512(f). Ms. Lenz claims that use of the music was obviously “fair use” andtherefore knowingly misrepresented that the posted content was infringing material.This case may give some guidance as to the meaning of “knowingly misrepresents.” 40F. Ownership IssuesDerivative WorksA derivative work is a work that is based on or derived from one or more preexistingworks. Copyright protection covers derivative works if those works include“an original work of authorship.” Some examples include: translations, musicalarrangements, and/or dramatizations. This copyright protection is limited, however.The protection only covers the aspects of the work that were changed.To create a derivative work, the derivative creator must have permission from theoriginal copyright owner. Therefore, UGC providers should incorporate thispermission into their terms and conditions.Joint OwnershipOftentimes, the UGC material is not the sole product of the person posting thecontent. A “joint work” is created when it is prepared by two or more authors withthe knowledge and intention at the time of creation that the contributions be mergedinto an “inseparable and independent parts of a unitary whole.” 41Joint works create their own unique rights. These include:1. The joint authors are treated as tenants in common.2. Each author has an independent right to use or nonexclusively license use ofthe work.3. The joint author can transfer his ownership to a third party but cannottransfer rights of any other joint owner.4. Must account to other joint authors for profits.39 Lenz v. Universal Music Publishing Group, C 07-03783-MEJ (N.D. Cal. complaint filed July 24, 2007).40 For another case alleging misrepresentation under section 512(f), see Kopp v. Vivendi Universal Games, No. 06-01767(C.D. Cal. complaint filed March 23, 2006).41 17 U.S.C. § 101.10