Tuesday, May 5, 2009

Miss Universe pageant joins the copyright fun; piles on National Organization for Marriage over ad

Miss California USA Carrie Prejean's controversial answer to a question by pageant judge Mario Lavandeira (aka Perez Hilton) is causing as many fights about copyright as it is about same-sex-marriage. Lavandeira is already involved in a copyright dispute with the National Organization for Marriage over NOM's use in an ad of 3 seconds of Lavandeira calling Prejean a "dumb [beep]."

Now, via TMZ, comes word that the Miss USA Pageant has made a copyright claim of its own, objecting to the use of footage it apparently owns in the same NOM ad:
The Miss Universe Organization just told us they've fired off a cease and desist letter to the National Organization for Marriage -- after NOM used footage from the Miss USA 2009 pageant in an anti-gay marriage commercial.

The commercial -- which is currently still playing on NOM's website -- uses Carrie Prejean's pageant response to the gay marriage question as a selling point for the ad.

This doesn't mean the MUO is taking sides on the issue -- just saying NOM can't use the copyrighted material to promote their agenda.
The footage in question appears to be about 6 seconds at the beginning of the ad, and consists of Prejean's now-famous statement: "I believe that a marriage should be between a man and a woman. No offense to anybody out there..."

Fair use? I sure think so. The ad comments directly on the pageant contestant's answer -- which has become a significant national controversy -- and is very brief. The Miss Universe organization -- a joint venture between Donald Trump and NBC Universal -- may not like its footage to be used for partisan purposes, but the fair use doctrine permits such uses -- whether they like it or not.


  1. its all over the top. why use women in this way??

  2. Ben,

    I would go one step further and posit the question "Does the MUO even hold a valid and subsisting copyright in the footage used by the NOM?" As I review once again the substantive requirements for one to hold a copyright, and as I consider those requirements in the context of the snippet used, I am left with substantial doubt that the snippet is even amenable to a copyright held by the MUO.

    Mike Slonecker

  3. @ Mike Slonecker:

    *Someone* owns the copyright in the pageant footage; I'll assume it is indeed MUO. But, for the reasons I stated, I think NOM's inclusion of a few seconds of that footage in its ad was a fair use.

  4. Ben,

    Of course I agree that the use of the snippet has all the hallmarks of fair use, will certainly be asserted, and will likely be sustained on that basis.

    My earlier point was to stand back for a moment and consider if a fair use defense is even necessary as it pertains to the snippet. I will concede that the televised program is almost certainly protected under Title 17. However, it has always intrigued me why I so rarely see any discussions (blogs, panels, journals, etc.) concerning the extent to which the protection pertains to the entirety of a work, and particularly televised events. In this instance we have a video of a young woman speaking in response to a question. I have a difficult time identifying what particular elements contained in the snippet can truly be forcefully and persuasively argued as comprising an original work.

    I would be interested in learning your views on this admittedly limited question.

    Mike Slonecker

  5. @ Mike Slonecker:

    Sorry -- I think I misunderstood your original comment.

    I think MUO has copyright in the pageant footage, but that copyright is thin. I recommend this 9th Cir. case called LANS v. Tur for a good discussion of the copyrightability of news footage:


  6. Of course I agree that the use of the snippet has all the hallmarks of fair use, will certainly be asserted, and will likely be sustained on that basis.

    Seriously though, we do need to use more.


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