Sunday, May 3, 2009

National Organization for Marriage claims fair use on Perez Hilton clip; won't cease broadcast of TV ad

The National Organization for Marriage has rejected a demand by an attorney for Mario Lavandeira (aka blogger Perez Hilton) that the anti-gay-marriage group cease and desist broadcast of a TV ad that includes a 3-second clip of Lavandeira calling Miss California USA a "dumb [beep]."

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.


  1. This could present a good opportunity to clarify the meaning of Section 512 (f) of the DMCA. The 9th Circuit has been all over the place on this, and clarification is desperately needed. As I see it, the ruling reached in Rossi v. MPAA is diametrically opposed to that of Online Policy Group v. Diebold.(I believe the Court got it wrong in Rossi). The judge in Lenz v.Universal Music Corp tried to square these rulings with one another and he's made a real mess of things. Reading his August 20, 2008 order Denying Universal's motion to dismiss and his October 28,2008 Order Denying Motion To Certify Interlocutory Appeal is like watching a man tap dancing on quicksand.

    Hilton calls himself a Miami native on his web site and NOM is based in New Jersey. I'm not sure which is the proper jurisdiction for this, but it looks like another Court may have a crack at getting this right.

  2. Oops! It looks like I was jumping the gun. Please ignore that last comment. I think I was ANTICIPATING that NOM was going to sue Hilton a la Lenz suing UM Corp, and I read the blog post first thing in the morning before my brain was engaged.

    As Emily Litella would say, "Never mind!"

    (But 512 (f) still needs clarification.)

  3. I think this is a wonderful example of how the knife cuts both ways with regard not only to fair use, but with regard to free speech issues as well. Perez Hilton has invoked the protection of both of these principles on numerous occasions, and has been successful (and in my opinion, rightfully so in most cases). He constantly takes pictures and quotes out of context, and I think he may begin to appreciate the severe consequences that expressing your opinion (especially in a harsh way) can entail. If Perez wants to be a public advocate for gay marriage, he needs to be sure he's expressing his opinions in a way that furthers the message - not berates the opposition.


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