On May 4, MUO sent a cease and desist letter to NOM, demanding that the anti-gay-marriage group stop using a brief (approximately 6-second) clip from this year's Miss Universe pageant in a TV ad. The footage in question depicts Miss California USA Carrie Prejean responding to a question from Lavandeira (one of the judges) by saying, "I believe that a marriage should be between a man and a woman. No offense to anybody out there..." MUO's letter, from its counsel Andrea Calvaruso of Donovan, Calvaruso & Yee LLP, says that MUO "takes no position on [NOM] and its political views," but "[n]evertheless...objects to this unauthorized use of its Copyrighted works." MUO's letter does not address the obvious point that NOM's use of such a short clip in a non-commercial, political context to discuss a raging national controversy presents a textbook case of fair use.
Miss Universe C&D to National Organization for Marriage
NOM responded yesterday with a letter from its counsel Barry Bostrom of Bopp, Coleson & Bostrom, rejecting MUO's demand and asserting fair use:
No permission was required and no permission was sought from [MUO] for use of the approximately seven second clip.... NOM's use of this seven second 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 [tax] 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.National Organization for Marriage response to Miss Universe C&D
I'm genuinely surprised that MUO, a joint venture of Donald Trump and NBC Universal which is represented by an experienced copyright lawyer, would make a claim here. Using a brief clip for purposes of political commentary is solidly in the heartland of fair use. Lots of fair use cases are close, hard calls, but this is an easy one. I can't imagine MUO prevailing in court if it follows through with its threats of a lawsuit.