Still image from YouTube video by Stephanie Lenz.

With the high-handed arrogance to which copyright holders have become accustomed, Universal Music sent a cease-and-desist letter to a Pennsylvania mother who had uploaded a 29-second video of her toddler dancing to a garbled Prince song playing in the background. In a rare turn of events, the mother, Stephanie Lenz, sued Universal for sending her a meritless “takedown notice.” She said the notice harmed her fair use and free speech rights, and she wants damages in return.

“I was really surprised and angry when I learned my video was removed, Lenz told the Electronic Frontier Foundation, which helped her bring her lawsuit. “Universal should not be using legal threats to try to prevent people from sharing home videos of their kids with family and friends.” EFF staff attorney Corynne McSherry said that “Universal’s takedown notice doesn’t even pass the laugh test. Copyright holders should be held accountable when they undermine non-infringing, fair uses like this video.”

Universal ultimately declined to argue that the video wasn’t fair use. But the company did argue that its mere assertion of a copyright violation should be sufficient justification for sending a takedown notice. Universal did not want to have to make a “fact-intensive inquiry” before sending out a notice, presumably because that would be too costly and time-consuming. And besides, Universal implied, it knows what is a copyright infringement. (Or in this case, Prince himself, who by one news report was directly involved in instigating the takedown notice in the first place.)

In other words, Universal Music wants to place the burden on individuals to vindicate their fair use rights when confronted with large corporations with armies of lawyers making unilateral assertions. Talk about ‘let’s go crazy’!

Federal judge Jeremy Fogel implicitly rejected this scenario and insisted that companies are perfectly capable of making fair-use determinations before they send out takedown notices. The judge’s ruling is a cold slap in the face for corporate copyright holders, who routinely threaten individuals with groundless cease-and-desist letters and act as if fair use is a legal triviality. By refusing to dismiss the case – and by squarely affirming the importance of citizens’ fair use rights – Judge Fogel delivers a welcome message that copyrights are not sweeping and absolute. The public’s fair use rights matter. Further evidence that fair use may be getting its groove back.

But in a surprising instance of man-bites-dog, the people of Montana have fought the privatization of the phrase “the last best place” – and won. With help from Montana Governor Brian Schweitzer and Senator Max Baucus, the U.S. Senate is expected to pass legislation this year that would prohibit the Commerce Department from granting a trademark for that particular phrase. This means that the people of Montana, the State of Montana and small businesses throughout the state will be able to refer to their state as “the last best place.”

Photo by Stuck in Customs, via Flickr, licensed under a Creative Commons BY-NC-SA license.

The controversy had its beginnings in 1988 when a professor of writing at the University of Montana, William Kittridge, and Annick Smith, published an anthology of Montana writers called “The Last Best Place.” The phrase had such an immediate resonance with people in the state that everyone from real estate brokers to motels to the state tourist office began using the phrase to describe Montana. It became a way of expressing one’s identification with and affection for this vast state of enormous natural beauty and its one million inhabitants.

Enter Las Vegas businessman David E. Lipson. One of his businesses, according to one reporter, tried to obtain a trademark on the phrase. He wanted to use it to market a variety of his businesses, including The Last Best Beef. The trademark application was so broad, says a Washington trademark lawyer cited by the New York Times (August 17, 2008) that it would have given Lipson a “de facto monopoly” on use of the term. In 2004, Montana Senator Conrad Burns tried to slip an amendment into a budget bill to prevent the registration of the phrase as a trademark. But Lipson challenged the bill in court. He won at the district court level and then lost on appeal.

Now, to put the matter to rest and prevent any future challenges, Senator Baucus has introduced a stronger, more ironclad version of the legislation that has now passed in the relevant Senate and House Committees, and is expected to become law.

Perhaps there is a lesson in all this. Why shouldn’t other popular expressions be granted some sort of immunity from corporate privatization? Why should Nike, McDonald’s, Coca-Cola or Kodak be able to march in and legally “steal” for itself a phrase or image that morally belongs to the people, or some distinct collective, who gave it social currency (and thus cash value) in the first place?

Among the world’s burning issues, the deficiencies of trademark law in protecting socially created value may not be at the top of the list. On the other hand, protecting the symbols of identity and community pride is no small matter, either. Just as the citizens of Montana.