In a May 1 letter to Lavandeira's attorney Todd Rubenstein, NOM attorney Barry Bostrom argues that the use of the brief clip from Lavandeira's "video blog" in an ad as an example of "intolerance" directed at same-sex-marriage opponents was a non-infringing fair use:
No permission was required and no permission was sought from Mr. Lavandeira for use of the approximately three second clip of the video he posted on the Internet of his unjustified and unprofessional diatribe against and personal attack on Carrie Prejean, Miss California, for her response to his question at the Miss USA Competition, April 19, 2009. NOM's use of this three second video clip is protected by 17 U.S.C. § 107 for the purpose of criticism, comment, news reporting, and education as it relates directly to NOM's exempt purpose. NOM's use is not a commercial use, but as an issue advocacy advertisement is protected by the First Amendment to the U.S. Constitution and the fair use doctrine of the Copyright Act.(I am trying to obtain Rubenstein's April 30 cease and desist letter, to which Bostrom's responds.) NOM says that it is putting $1.5 million behind the ad, which is called "No Offense." Lavandeira has also sent a DMCA takedown notice to Youtube regarding the NOM ad -- a move that has sparked a firestorm in the conservative blogosphere.
The firestorm appears to be far from over.
UPDATE: This post at Bloggasm says that NOM's "lawyers have already sent ... a letter to YouTube asking it to reinstall the video," which I take to mean that they have sent a DMCA counternotice. Assuming that is the case, YouTube will almost certainly re-post the video after 10-14 business days, unless NOM files suit in the meantime.