Emoticons and the Law

From Lenz v. Universal Music Corp. (N.D. Cal. Feb. 25, 2010), “Stephanie Lenz’s lawsuit against Universal Music over the ‘Let’s Go Crazy’ dancing baby takedown” (emphasis added):

Plaintiff Stephanie Lenz (“Lenz”) moves for partial summary judgment … with regard to six affirmative defenses asserted by Defendants Universal Music Corp., Universal Music Publishing, Inc., and Universal Music Publishing Group ….

On July 24, 2007, Lenz filed suit against Universal alleging misrepresentation pursuant to 17 U.S.C. § 512(f) …. She also sought a judicial declaration that she did not infringe on Universal’s copyrights….

Universal … argues [as a defense to Lenz’s lawsuit] that there are triable issues of fact as to whether Lenz has “prosecuted in good faith the assertion that she has been damaged” by Universal’s alleged violation of § 512(f). This argument is based on four separate contentions…. [The fourth is] that an email exchange between Lenz and one of her friends shows that Lenz does not believe that she was injured substantially and irreparably by the takedown notice. In the exchange, Lenz responds to her friend’s comment that the friend “love[s] how [Lenz has] been injured ‘substantially and irreparably’ ;-)” by writing “I have ;-).” The (“;-)”) symbol, according to Lenz, is a “winky” emoticon which signifies something along the lines of “just kidding.”

At her deposition, Lenz testified that she believed her friend’s use of the emoticon “was kind of a reference back to [the] lawyerese” of the “substantially and irreparbly harmed” language and that her use of the emoticon was “a reply to the wink that [her friend] used.” Lenz maintains that the fact that she “believes that lawyers sometimes use stilted language is not evidence of bad faith.” …

Universal’s proffered evidence is insufficient to establish that Lenz acted in bad faith in claiming injury as a result of the takedown notice. Further, given the state of the law on damages under the statute and the unfamiliarity of lay people with statutory language, no reasonable jury could find that Lenz’s allegations of “substantial and irreparable injury” are the kind of unconscionable acts against which the defenses of bad faith and unclean hands are intended to guard. This is not to say Universal has no recourse. If Universal believes that Lenz or her counsel have engaged in litigation misconduct that warrants sanctions, it may raise that issue by motion….