Tuesday, October 14, 2008
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Filmmaker Sues Talk Radio Host Over Copyright Claim
By STEVEN M. ELLIS, Staff Writer
An activist filmmaker on Friday filed suit against talk radio host Michael Savage and the organization that syndicates his show nationally over their demand that video sharing website YouTube remove a video by the filmmaker criticizing Savage using excerpts from his show.
Brave New Films alleged in a complaint filed in the U.S. District Court for the Northern District of California that use of the excerpts containing anti-Muslim remarks by Savage fall within the fair use doctrine in light of a July ruling dismissing Savage’s copyright infringement claim against a Muslim civil rights group that made similar use of the excerpts, and accused Savage and Talk Radio Network of improperly attempting to silence it.
Co-founded by documentary filmmaker Robert Greenwald, who directed and produced “Outfoxed: Rupert Murdoch’s War on Journalism” and “Wal-Mart: The High Cost of Low Price,” the filmmaker describes itself as the producer and distributor of “films, blogs, television shows and short videos that challenge corporate and political misbehavior.”
On Jan. 18, the filmmaker uploaded to a channel it maintains on YouTube a short video titled “Michael Savage Hates Muslims,” criticizing comments Savage made on his Oct. 29, 2007 radio broadcast.
The video used one minute of audio excerpts in which Savage denigrated Muslims as “throwbacks” who should be deported “without due process,” instructed Muslims to “take [their] religion and shove it up [their] behind,“ and urged listeners of his nationally-syndicated radio show, The Savage Nation, to confront Muslims in the “supermarket line.” It also directed viewers to nosavage.org, a website dedicated to exposing and criticizing Savage’s views.
The network sent a takedown notice to YouTube on Sept. 29 demanding removal of the video for copyright infringement, which the filmmaker claimed resulted in YouTube removing the video and also temporarily disabling Brave New Films’ entire YouTube channel. The filmmaker maintains approximately 300 videos on the website, which is the largest channel through which it distributes its content.
In response, the Fair Use Project at Stanford Law School’s Center for Internet and Society and Bingham McCutchen LLP, representing Brave New Films pro bono, filed the lawsuit Friday seeking a declaration that the video made fair use of the defendants’ copyrighted material, as well as damages for misrepresentations the network allegedly made in the takedown notice.
The action is based on a July 25 ruling by U.S. District Judge Susan Illston, also of the Northern District, dismissing a lawsuit by Savage against the Council for American-Islamic Relations. Savage had claimed that group’s use of a four-minute audio clip taken from the same broadcast infringed his copyright, and accused the group of using it to raise funds to support terrorist activity in violation of the Racketeer Influenced and Corrupt Organizations Act.
However, Illston ruled that CAIR’s use of the clip was fair use as a matter of law:
“The complaint affirmatively asserts that the purpose and character of [CAIR’s] use of the limited excerpts from the radio show was to criticize publicly the anti-Muslim message of those excerpts,” she wrote. “To comment on [Savage’s] statements without reference or citation to them would not only render [CAIR’s] criticism less reliable, but be unfair to [Savage].
“Further, it was not unreasonable for defendants to provide the actual audio excerpts, since they reaffirmed the authenticity of the criticized statements and provided the audience with the tone and manner in which plaintiff made the statements.”
Referring to Illston’s opinion, Fair Use Project Executive Director Anthony Falzone said that Talk Radio Network “must have known that its takedown notice was baseless…because using limited amounts of copyrighted material for the purposes of criticism is a textbook case of fair use.”
Co-counsel William F. Abrams—a partner at Bingham McCutchen’s Silicon Valley office and co-chair of the firm’s IP Practice Group, as well as a consulting professor at Stanford—commented that “filmmakers like Brave New Films should not have their free speech rights violated by improper use of the copyright laws.”
He continued:
“The court previously said that it was fair use to use this content. This case enforces Brave New Films’ rights to use it.”
Savage’s attorney, Daniel Horowitz of the Contra Costa County city of Lafayette, who also represented Savage in the lawsuit against CAIR, said Friday that he had not yet received a copy of the complaint, and declined comment.
Representatives of Talk Radio Network could not be reached for comment.
However, Greenwald, the filmmaker’s president, said that it was “the ultimate irony that a raging bigot like Michael Savage, whose hate speech is protected by the Constitution, is trying to censor Brave New Films.“
Accusing Savage of using the law to “bully his detractors,” Greenwald added, “it’s not working.”
Copyright 2008, Metropolitan News Company