Anti-gay-marriage group sends DMCA notice on ad audition excerpts; a good fair use test for web video?

Via Wired comes news of an interesting DMCA takedown fight that could bring some clarity to the law regarding use of short video clips as part of news and commentary.

Here's what happened: the National Organization for Marriage is running an ad parading a litany of horribles that would supposedly beset the nation if same sex marriage is made legal:



Somehow the gay rights group Human Rights Campaign got hold of some tapes of actors auditioning for the spot and, quite humorously, having trouble with their lines. One example here:


MSNBC's Rachel Maddow ran some clips of the audition on her show last Thursday, and someone posted the MSNBC segment to YouTube. But the clip is no longer available, due to a DMCA takedown notice to YouTube not from MSNBC, but from NOM. Apparently NOM's theory is that they own the copyright in what Wired says are the "few seconds of the audition tapes" that were shown as part of the MSNBC segment. Update: here's the Maddow segment. The audition footage is about 40 seconds long, starting at 3:14.

I'm always reluctant to say a particular use is a fair use unless I've actually seen the whole use, in context -- and I haven't here. But I have no problem saying that, as a general matter, it's almost certainly fair use for a political news show to show a "few seconds" of a political ad (or an audition for one) to make a political point (as Maddow clearly was doing). (Just as it's fair use for a political campaign to use a few seconds of a news clip to make a political point in a campaign video. But I digress...)

So should the person who posted the MSNBC clip (that incorporated the NOM audition footage) file a DMCA counternotice, which would likely get his or her video re-posted, unless NOM files suit within 10-14 business days? Maybe! First, a few questions:

1) Who posted it? I have no idea. Does he or she want to get involved in a potential lawsuit? Does he or she have money? (That might not be necessary; EFF is trolling for plaintiffs.)

2) Does MSNBC care that the Maddow segment got posted to YouTube? They own the copyright in their show, and it's within their rights to send DMCA notices to keep their works off YouTube. It would be a particularly Pyrrhic victory if the poster were to succeed in getting the video re-posted after a fight with NOM -- only to have MSNBC submit a legitimate DMCA notice.

3) Does NOM actually own the copyright in the audition tapes? I'm not sure; it may depend on the contract with their ad firm (if indeed their was an outside firm). If they don't own the copyright, their DMCA notice is no good.

4) Finally, even if NOM really does own the copyright in the audition clips, did it register them with the Copyright Office? Most jurisdictions follow the rule that, under 17 U.S.C. § 411(a), one cannot initiate an infringement suit without actually having obtained a registration certificate (or a denial). Say the poster does file a counternotice. Would NOM even be able to file a lawsuit within the 10-14 day DMCA window? (Registration normally takes months; expedited registration takes a few weeks.)

Bottom line: this incident could present a very interesting fair use and DMCA test case. And, given what I know right now, I'm not betting on NOM.