Wednesday, May 6, 2009

NOM ad: if this isn't fair use, what is?

Over the last few days, I've asked a few copyright lawyers, on various points of the copyright spectrum, whether they think the inclusion of 3 seconds from Perez Hilton's video blog and 7 seconds of Miss USA pageant footage in a National Organization for Marriage TV ad about the gay marriage debate were fair uses. So far, everyone with whom I've spoken or emailed -- from studio lawyer to committed copyleftist -- agrees with me that these are clear examples of fair uses. And I haven't located a single bit of legal commentary on the web siding with Hilton (né Mario Lavandeira) or the Miss Universe organization ("MUO"). In fact the only people I know of asserting that these uses are infringing are the attorneys for Lavandeira and MUO (though neither of them has specifically addressed fair use).

So I have a serious, non-rhetorical question: can anyone make a reasoned legal argument that the fair use defense does not apply to NOM's use of the Lavandeira and MUO clips? What are your best cases? And if you believe that these are not fair uses, can you give examples of what you believe are fair uses, and distinguish those from the NOM example? Please respond in the comments.


  1. I am surprised that MUO even sent a cease and desist letter. I am not surprised that it is unhappy in getting dragged into this political debate, but by sending a weak cease and desist letter, MUO is just plunging into the debate even more.

  2. Compare this to the sampling case where the use of two notes was said to be infringing.

  3. @ Anonymous 4:26:

    If you are referring to the Sixth Circuit's decision in Bridgeport Music v. Dimension Films, that case did not consider whether the use of the short sample of a sound recording was a fair use. It merely determined that the copying was not excused by the de minimis doctrine.

  4. copyright, shmopyrightMay 8, 2009 at 10:14 AM

    Seems like a textbook example of fair use as "commentary". I mean, it's right there in the preamble, for FSM's sake.


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