Nationally syndicated conservative radio host Michael Savage filed a lawsuit against CAIR, the Counsel on American-Islamic Relations. The lawsuit claims that the Muslim group has misused copyright material from his show for fund raising and propaganda. This claim is a blatant abuse of the copyright act to stop criticism that the First Amendment protects through Fair Use.

CAIR is using clips from Savage’s radio show to illustrate what they call “bigoted statements.”
A remix of some of those statements can be found on CAIR’s Website at:
http://www.cair.com/audio/savage_102907.asp. This link was included in an action alert from November 16th asking CAIR’s constituents to contact AT&T to pull advertising from Savages radio program.

It is clear that these clips are copyrighted by Savage, but the real legal question here relates to CAIR’s possible Fair Use defense. Fair use is an embodiment of the First Amendment in the copyright act.

Fair Use under17 U.S.C. § 107 of the copyright act is a four factor balancing test that includes:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In this case many of the factors are going to weigh in favor of CAIR.

Factor #1 Purpose and charter of use

For factor one CAIR is a nonprofit 501(c)3 that is not trying to directly profit from Savage’s work. CAIR is using the clips as part of its education to constituents about Savages views and encouraging constituents to take action. CAIR may gain more members or donation from members based on Savages comments but this is not the type of use that should be considered as commercial because they are gaining only from criticizing Savage.

Criticism and Commentary are explicitly permitted under copyright law. “one office of the fair use defense is to facilitate criticism of copyrighted works by enabling the critic to quote enough of the criticized work to make his criticisms intelligible. Copyright should not be a means by which criticism is stifled with the backing of the courts. ” Chicago Bd. of Educ. v. Substance, Inc. 354 F.3d 624, 628 (2003)

This is a nonprofit educational criticism. Factor one is in CAIR’s favor.

Factor #2 Nature of the copyrighted work

This factor distinguishes types of material such as “informational” and “functional” works from “entertainment” works giving stronger protection to creative works. The courts often give less protection to news reports or television broadcast of current events. Savages radio talk show does cover current events and news related items, and the audio clips used by CAIR are directly relaveant to current events. Although it could be argued that Savage’s radio broadcast is mere entertainment with no news value, Savages own bio on his professional website describes Savage’s show as “brash commentary and unapologetic solution” to current political issues.

Factor two weighs in favor of less copyright protection due to the informational and functional nature of the clips used.

Factor #3 The amount and substantiality of the portion used.

This factor focus on the amount of a copyrighted work that is used relative to the entire copyrighted work. From both a quantitative and qualitative standpoint CAIR has only used a minimal portion of Savages radio show. The audio clip on CAIR’s website is less than 5 minutes in length. Savage’s radio program is on for a few hours every day with a total length of several hundred hours. Quantitatively the clip used is a very small portion of the over all work.

Additionally Savage himself has repeatedly asserted that the clip was taken out of context and was not representative of his general views on the show. Copyright protection should only be extended to a small portion of a work if it is the heart of the work. Here Savage’s own claim is that the clip is not the heart of his work.

Factor three weighs strongly in favor of CAIR and Fair Use.

Factor #4 The effect of the use upon the potential market for or value of the copyrighted work.

The final factor takes into account the financial effect on the market value of the copyrighted work. For this factor, it is important to note that the fact that the substance of the criticism may have lead to financial harm to Savage due to the withdrawal of advertisers is irrelevant. In Campbell v. Acuff-Rose Music, “when a lethal parody, like a scathing theater
review, kills demand for the original, it does not produce a harm cognizable under the
Copyright Act. Because ‘parody may quite legitimately aim at garroting the original,
destroying it commercially as well as artistically,’…” CAIR was specifically using the audio clip in conjunction with an action campaign designed to pressure advertisers to boycott Savage’s program. Paragraph 68 of Savage’s complaint refer to harm but only the type of harm that critic generates.

In the complaint Savage does claim finical harm based on CAIR’s possible use of the clips to raise funds, paragraphs 8, 13 and 22, for CAIR. The fund raising claim does not change the underlining analysis. One is alowed to make money off of Fair Use, in Campbell 2 Live Crew was a commercial entity using a portion of Roy Orbison’s song “Oh, Pretty Woman”for primarily commercial purposes and this did not preclude a Fair Use defense. If a for profit rap group can sell a derivative infringing copyrighted work for commercial purpose, a non-profit 501(c)3 that is not even selling the audio clips surely has a stronger defense of Fair Use when viewed in light of the strong critique CAIR is making.

This fourth factor in light of the critical nature of the use weighs in favor of CAIR and the possible fund raising activities related to CAIR’s use of the clips does not prevent a Fair Use finding.

In Summary all four factors are in favor of CAIR’s Fair Use defense of a copyright infringement claim by Savage. The nature of the use was for education, news, and critique. The type of work was current event related media critique. The amount of the copyrighted work was less then 5 minutes of several hundred hours of programing and not the heart of Savage’s radio program. The financial harm was purely related to the critical nature of the use. A finding for the Fair Use defense is appropriate in this case.

The First Amendment’s power to protect critical speech should not be limited by spurious copyright claims designed to quell unwanted speech.

Press Coverage:
Newsmax
Michael Savage’s website with a copy of the complaint

Credit: This Fair Use analysis has been heavily influenced by Matt Zimmerman’s letter to ABC concerning the take down of Spocko’s clips criticizing KSFO-AM on behalf of EFF.
Link to Spocko ABC Fair Use letter.