Perez Hilton posts...and the mind reels

Mario Lavandeira (aka Perez Hilton) recently paid his lawyer good money to write a cease and desist letter to the National Organization for Marriage over NOM's use of a 3-second clip from his video blog in a TV ad.

And what did Lavandeira do today? How about: post a 10-minute, uninterrupted clip from CNN -- complete with a "PEREZ TV" overlay and an pre-roll ad. Lavandeira added nothing to the CNN video itself, just the following text on his blog under the video: "President Obama is remaining uncomfortably quiet on gay issues - and the mainstream media is noticing. As are we!!!"

Fair use? Extremely doubtful; you can't just post long segments of news footage, even if you think it helps your political cause. Unclean hands? Hypocrisy? I think we need some stronger words.

YouTube restores National Organization for Marriage video early, citing fair use

In what I believe is an unprecedented development, YouTube has conducted its own legal analysis of a National Organization for Marriage video that was subject to a DMCA takedown notice, and has re-posted the video prior to the expiration of the 10-14 business day counternotice window after determining that the inclusion of a 3-second clip of Perez Hilton calling Miss California USA Carrie Prejean a "dumb [beep]" was a non-infringing fair use.



Up until now, I believe, YouTube has consistently taken the position that it would not conduct its own fair use analysis of videos subject to DMCA notices, and would simply follow the procedures outlined in 17 U.S.C.§ 512(g), which provide that a host wait 10-14 days after receipt of a counternotice if it wishes to maintain its safe harbor from an infringement claim. In re-posting the video, YouTube subjects itself to a (very small) risk of liability from Hilton (né Mario Lavandeira), but will also earn the gratitude of those concerned that some copyright owners are abusing the DMCA's notice-and-takedown process to suppress political speech with which they disagree.

Here's the background: NOM's video, titled "No Offense," contains about 3 seconds from Lavandeira's "video blog" in which he calls Prejean a "dumb bitch" (NOM beeps out "bitch") because of her now-famous answer to a question from Lavandeira at the Miss USA pageant, in which she expressed opposition to same sex marriage. The ad argues that gay marriage opponents are routinely subject to "intolerance" by supporters, and uses Lavandeira's "bitch" comment as a prime example.

Lavandeira sent YouTube a DMCA takedown notice on or about April 30, at which point YouTube promptly took down the video. NOM responded with a counternotice on May 1. Normally in this situation, YouTube would wait 10-14 business days to restore the video -- at least until May 15. (YouTube would not re-post if Lavandeira sued in the meantime, which hasn't occurred.) But on May 5, NOM's attorney Barry Bostrom wrote a letter to YouTube requesting immediate re-posting of the video, on the grounds that Lavandeira could not have asserted in good faith that the video was infringing, given the obvious fair use defense.

To my surprise, YouTube agreed with Bostrom and has restored the video. In an email sent on the night of May 6, a member of YouTube's copyright team wrote Bostrom:

Dear Barry,

Thank you for your letter. We have reviewed the content in question and determined that this appears to be an example of fair use under Section 107 of the Copyright Act.

This content has been restored and your account will not be penalized. For technical reasons, it may take a day for the videos to be available again.

Sincerely,

Justin
The YouTube Team

YouTube deserves many kudos for this step. By re-posting the video fewer than 10 business days after receiving NOM's counternotice, it gave up the DMCA's safe harbor in the event Lavandeira sues YouTube. See 17 U.S.C.§ 512(g). I am very confident YouTube would prevail in such a suit, given that there was no infringement in the first place, see id. § 107 ("the fair use of a copyrighted work...is not an infringement of copyright"), but YouTube does deserve much credit for essentially waiving its safe harbor defense.

So what happens now? Lavandeira could sue YouTube or NOM for copyright infringement; I predict a court would dismiss such a suit at the earliest opportunity, and probably issue Rule 11 sanctions for bringing such a patently frivolous case. NOM could also sue Lavandeira under 17 U.S.C. § 512(f) for having made a bad-faith accusation of infringement in his initial DMCA takedown notice.

Interestingly, the Miss Universe organization ("MUO") has also made a claim on the same ad (or the 30-second version), objecting to the use of its footage, which depicts Prejean answering the question about same sex marriage. I don't believe MUO ever sent a DMCA notice (it wasn't necessary since Lavandeira had sent one first), but MUO could theoretically send one now. Such a notice would be just as meritless as Lavandeira's, and it would be interesting to see how YouTube reacts if MUO takes such a step.

All in all, this is very positive step by YouTube, and a blow to those like Lavandeira who have abused copyright laws in an effort -- however ineffective -- to silence their political opponents.

National Organization for Marriage rejects claim by Miss Universe organization; asserts fair use of short clip

The National Organization for Marriage has already rejected a copyright claim from blogger Mario Lavandeira (aka Perez Hilton), and now it's standing up to the Miss Universe organization as well.

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

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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

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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.

Miss Universe pageant joins the copyright fun; piles on National Organization for Marriage over ad

Miss California USA Carrie Prejean's controversial answer to a question by pageant judge Mario Lavandeira (aka Perez Hilton) is causing as many fights about copyright as it is about same-sex-marriage. Lavandeira is already involved in a copyright dispute with the National Organization for Marriage over NOM's use in an ad of 3 seconds of Lavandeira calling Prejean a "dumb [beep]."

Now, via TMZ, comes word that the Miss USA Pageant has made a copyright claim of its own, objecting to the use of footage it apparently owns in the same NOM ad:

The Miss Universe Organization just told us they've fired off a cease and desist letter to the National Organization for Marriage -- after NOM used footage from the Miss USA 2009 pageant in an anti-gay marriage commercial.

The commercial -- which is currently still playing on NOM's website -- uses Carrie Prejean's pageant response to the gay marriage question as a selling point for the ad.

This doesn't mean the MUO is taking sides on the issue -- just saying NOM can't use the copyrighted material to promote their agenda.

The footage in question appears to be about 6 seconds at the beginning of the ad, and consists of Prejean's now-famous statement: "I believe that a marriage should be between a man and a woman. No offense to anybody out there..."

Fair use? I sure think so. The ad comments directly on the pageant contestant's answer -- which has become a significant national controversy -- and is very brief. The Miss Universe organization -- a joint venture between Donald Trump and NBC Universal -- may not like its footage to be used for partisan purposes, but the fair use doctrine permits such uses -- whether they like it or not.

Perez Hilton's cease and desist letter to NOM: ignoring the fair use elephant in the room

I've obtained the original April 30 cease and desist letter from the attorney for Mario Lavandeira (aka Perez Hilton), demanding that the National Organization for Marriage stop using a three-second clip of footage apparently owned by Lavandeira in a NOM TV ad. The clip, from Lavandeira's video blog, features the celebrity blogger calling Miss California USA Carrie Prejean a "dumb [beep]" -- an example of what NOM criticizes as intolerance directed at those who oppose same-sex-marriage.

Here's the letter, from Lavandeira's counsel Todd Rubenstein of Morris Yorn Barnes & Levine, a transactional entertainment boutique in Los Angeles :

National Organization for Marriage
20 Nassau Street, Suite 242
Princeton, NJ 08542

Re: Perez Hilton / Copyright Infringement

To Whom It May Concern:

This law firm represents Mario Lavandeira a/k/a Perez Hilton.

We have become aware that without authorization or legal right, the National Organization for Marriage ("NOM") is using copyrighted footage owned by Mr. Lavanderia (the "Materials") in a commercial (the "Commercial") as part of a fundraising campaign for NOM. At no time did Mr. Lavandeira grant NOM permission to use or reproduce copyrighted material owned exclusively by Mr. Lavandeira.

This unauthorized, offensive conduct has caused and will continue to cause substantial damage to our client. Any unauthorized publication, reproduction or dissemination of the Materials constitutes an infringement of our client's copyright in violation of the U.S. Copyright Act, Title 17 of the United States Code Section 101, et seq., and exposes the copyright infringer, and anyone else acting in concert with him to civil liability,damages, injunctive relief and reimbursement of all attorneys' fees and costs incurred by our client in connection with any copyright infringement action. Section 106 of the Copyright Act provides in relevant part:

"[T]he owner of copyright under this [Act] has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work . . .(2) to prepare derivative works . . .(3) to distribute copies . ..and (5) to display the copyrighted work publicly."

Be advised that under 17 U.S.C. Section 101, et seq., NOW may be held liable to Mr. Lavandeira for up to $100,000 in statutory damages.

This letter is also copyrighted material owned by Mr. Lavandeira and may not be published or reproduced without Mr. Lavandeira's permission.

Mr. Lavandeira intends to protect the use of his copyright to the fullest extent allowable under law. Accordingly, demand is hereby made that NOM immediately: (i) cease and desist from any further use of the Materials in any manner or medium, including, but not limited to, in the Commercial; and (ii) confirm to this office in writing that you will comply with the foregoing.

We demand that you respond affirmatively and immediately, failing which we have been instructed to pursue all remedies available to us in law and equity to enforce Mr. Lavandeira's rights. If we are forced to take legal action against you, then we will prosecute to the fullest extent possible, seeking both compensatory and punitive damages as well as attorneys' fees and costs. Govern yourselves accordingly.

Nothing contained herein shall be deemed a complete statement of any legal or factual position, all of which are hereby expressly reserved.

Very truly yours,


TODD RUBENSTEIN, ESQ.

TR/ng

Enclosures

cc: Mario Lavandeira

Barbara Lavandeira

Andrew Meyer

Bryan Freedman, Esq.

Rubenstein's letter simply ignores the elephant in the room: fair use. Often a letter like this will include a section saying something like, "We expect that you will claim that your conduct is protected under the fair use doctrine. But that is incorrect, for the following reasons..." Here, the fair use defense is so strong that I guess I shouldn't be surprised that Lavandeira's attorneys can't even muster up an argument why it doesn't apply. As I've previously written, and as Sam Bayard of the Citizen Media Law Project agrees:

This is one of those rare moments when fair use analysis is easy -- the use is for purposes of criticism and commentary on a burning public issue, the amount of material taken is very small, and there is no conceivable harm to the market for Lavandeira's work.

Rubenstein's statement that "Any unauthorized publication, reproduction or dissemination of the Materials constitutes an infringement of our client's copyright..." is simply wrong. It is not true that "any" unauthorized use of copyrighted material "constitutes an infringement." Section 107 of the Copyright Act is clear: "the fair use of a copyrighted work...is not an infringement of copyright" (my emphasis).

And to the extent that Rubenstein is suggesting that the use was not fair because it was "part of a fundraising campaign for NOM," courts have rejected this very argument. See American Family Life Insurance Co. v. Hagan, 266 F. Supp. 2d 682 (N.D. Ohio 2002) (use of mark in a political campaign spot that included “solicitation of contributions” was “properly classified not as a commercial transaction at all, but completely noncommercial, political speech”); Mastercard Int’l Inc. v. Nader 2000 Primary Comm., Inc., 70 U.S.P.Q.2d 1046 (S.D.N.Y. 2004) (even if candidate’s ad resulted in increased contributions, the ad would still not be “commercial”; “If so … all political campaign speech would also be ‘commercial speech’ since all political campaigns collect contributions”).

As to the threat to seek statutory damages, I have no idea where the "$100,000" figure comes from. Section 504(c) provides for statutory damages ranging from $750 to $30,000 per infringed work, or up to $150,000 in the case of willful infringement.

NOM has already rejected Lavandeira's demand in this letter. I don't know if the blogger will follow through with his threat to sue. But I do know that using three seconds of footage in a purely political context, to criticize the copyright owner's own words, is about the clearest case of fair use one will ever encounter. I doubt such a suit would survive a motion to dismiss -- let alone pass any copyright lawyer's laugh test. We're in Rule 11 territory here.

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.

Perez Hilton's copyright (mis)information page

Doing some additional research into the Perez Hilton/National Organization for Marriage copyright flap, I came across the "Copyright Information" page on Hilton's blog. Given Hilton's penchant for finding himself in the middle of copyright disputes, one might expect this page to be a well-lawyered, legally accurate effort to keep Hilton -- né Mario Lavandeira -- out of trouble. One would be wrong! Actually, Hilton's copyright page is the worst example of a copyright policy I've ever seen. Let's take a look:

All images on perezhilton.com are readily available in various places on the Internet...

Well, maybe. But so what? That a work may be "readily available" on the Internet does not mean that it is free for the taking, any more than the fact that a DVD is "readily available" at Best Buy means you can make copies and sell them, give them away, or post them on the web.

All images on perezhilton.com are...believed to be in public domain [sic].

Seriously? Exactly what is the basis for Hilton's purported "belie[f]"? Actually, I very much doubt that any of the photos on Hilton's site are in the public domain. Someone took the celebrity photos he features, and they -- the paparazzi or the photo agencies that employ or contract with them -- own the copyrights. And I would be shocked if any of them have dedicated their works to the public domain. I don't know Hilton's current business practices, and he may well be displaying these photos under license from the copyright owners, but this has nothing to do with the "public domain."

Under the section titled "Claims of Infringement," Hilton writes:

If you believe that any content appearing on perezhilton.com infringes on your copyright, please let us know. E-Mail info@perezhilton.com [sic] following information to us and the infringing material will be removed as soon as possible.

(a) your name, address, telephone number, and e-mail address;
(b) a description of the copyrighted work that you claim has been infringed;
(c) the exact URL or a description of each place where alleged infringing material is located;
(d) a statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
(e) your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
(f) a statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner's behalf

Well, it's nice that Hilton provides an email address to send infringement notices. But the suggestion that the material will only be removed if the information listed in (a)-(f) is provided has no actual legal basis. This section of Hilton's copyright policy mirrors the requirements of Section 512(c) of the DMCA, which provides a safe harbor for hosts of material provided by others if the host (among other things) removes the material promptly upon receipt of a takedown notice that contains certain required information (basically, what Hilton lists in (a)-(f)). But Hilton's posting of photos is not protected by the DMCA's safe harbor -- even if he removes them promptly upon request -- for the simple reason that they are posted by Hilton himself, not "at the direction of a user." 17 U.S.C. § 512(c)(1). If Hilton posts a photo without the permission of the copyright owner, the copyright owner can simply run to court and file a copyright lawsuit -- no prior notice to Hilton required. And if the copyright owner chooses to send a demand letter first, it does not need to follow any particular form, including that provided by Hilton.

Lastly, Hilton darkly warns:

Please also note that under Section 512(f) of the Copyright Act any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

Sorry, but Section 512(f) has nothing to do with the photos Hilton posts to his site. Section 512(f) covers only misrepresentations in a DMCA takedown notice (or counternotice). See id. (imposing liability on "Any person who knowingly materially misrepresents under this section," i.e., Section 512, which sets forth the safe harbors for ISPs, hosts, and search engines (emphasis added)). But, as noted above, an infringement notice to Hilton for photos he posts would not be a DMCA notice under Section 512. Issuing a baseless infringement notice to Hilton about a photo he posts is a bad idea -- but it won't give rise to liability under Section 512(f).

Perez Hilton, copyright cop? Blogger issues takedown notice over anti-gay-marriage ad

Perez Hilton (né Mario Lavandeira) may be the unlikeliest copyright enforcer on earth. The blogger rose to fame by posting photos of celebrities -- without permission from the copyright owners -- and defending himself from the inevitable lawsuits by claiming that his crude scribbling of penises, cocaine, and semen on the subjects' faces rendered his conduct fair use.

Well, the times they are a changing. Lavandeira, who has morphed into a gay-rights activist, has now issued his own DMCA takedown notice over a TV ad posted to YouTube by the National Organization for Marriage, an anti-same-sex-marriage group. The ad (still available on NOM's web site) focuses on the recent Carrie Prejean/Miss California USA imbroglio, in which Lavandeira played a starring role. The 30-second NOM spot uses about 3 seconds of footage from Lavandeira's video blog where he says of Prejean, "She's a dumb [beep], OK?" As NOM describes its spot:

The ad highlights the efforts of same-sex marriage activists to silence and discredit pro-marriage advocates, calling them "liars," "bigots," and worse.

(There may be both 30-second and 1-minute versions; the image from this site indicates that (at least one) video removed from YouTube was one-minute long. I'll try to nail this down. See update below.)

Fair use? Almost definitely. The use is transformative (for a political purpose), noncommercial, extremely brief, and won't harm the market for the work. I'm all for copyright owners -- even Perez Hilton -- enforcing their copyrights against true infringers who seek to profit or avoid paying legitimate license fees by simply copying others' works. But making bogus claims merely to silence one's political opponents is wrong, and will ultimately harm responsible copyright owners. Lavandeira could well find himself facing another lawsuit, this time under 17 U.S.C. § 512(f). (And no, NOM doesn't seem to be much better than Lavandeira in its copyright practices.)

UPDATE: Patterico is on the case. And he has found and re-posted a copy of the one-minute version of the NOM video that was apparently the actual subject of Perez Hilton's DMCA takedown notice (and that incorporates the same 3 seconds of Hilton that appears in the 30-second version):

Patterico -- just as he did with the Susan Roesgen/CNN video -- is encouraging others to re-post the same video. And the blogger/prosecutor is not about to back down if Hilton sends a takedown notice on his version of the video:

If Hilton sends me a DMCA takedown notice, I’m going to fight it — and I may sue him. I have never seen a clearer example of fair use in my life. The video shows a mere three seconds of Hilton calling Prejean a “dumb bitch” (the word is bleeped out). Later, there is a one-second clip of the same video confined to a small box at the bottom right-hand portion of the screen, as the announcer intones: “They want to silence opposition.” He had no idea how right he was.
***
Let’s make this guy wish he had never tried to suppress this video.

Patterico spends his days prosecuting some of LA County's worst gang murderers. In a fight with Hilton...well, it wouldn't be much of a fight.