Savage v. Council on American-Islamic Relations: A Breathtaking Misunderstanding of Copyright Law

Conservative talk show host Michael Savage sued the Council on American-Islamic Relations (CAIR) in federal district court in California on Monday for copyright infringement. Savage posted a copy of the complaint on his website. He claims that CAIR violated his copyrights in the October 29, 2007 program of the "Michael Savage Show" by excerpting a four-plus minute portion of the show and posting it on CAIR's website. The excerpt was (and remains) attached as an audio file to an article on the website, entitled "National Radio Host Goes On Anti-Muslim Tirade." I don't want to go into details about the Savage excerpt, but I have listened to it, and one can only describe it as extremely hateful material aimed at Muslims, the Quran, and the Islamic faith in general. I encourage readers to visit CAIR's website and listen to the clip for themselves -- there is no adequate way of describing Savage's venom, his vulgarity, and his gross misunderstanding of Muslim culture and Islamic law.

The CAIR article attaching the audio file criticizes Savage's comments on the show and calls on "radio listeners of all faiths to contact companies that advertise on Michael Savage's nationally-syndicated radio program to express their concerns about the host's recent anti-Muslim tirade." To me, this looks like a textbook example of a fair use of the radio excerpt for purposes of commentary and criticism, full stop. It even has a core political speech element that should make the fair use argument stronger, as the purpose of the article was to mobilize radio listeners to take action (lawful action, I might add).

Savage's complaint is bewildering. It gives perfunctory treatment to Savage's copyright ownership of the radio program and CAIR's posting of the excerpt, then launches into convoluted arguments about why CAIR is a political organization, rather than a charitable or civil rights organization. More ominously, the complaint spends pages trying to establish that CAIR has ties to organizations like Hamas and Hezbollah, as if that kind of mudslinging had any bearing on a copyright claim. Most bizarrely, Savage argues at length about how CAIR used the excerpt from his show out of context, thereby distorting his message and . . . wait for it . . . squelching his freedom of speech. Here are some choice excerpts from the complaint (hope he doesn't sue me too), showing Savage's odd approach to setting forth a copyright claim:

The misportrayals were done to silence people who oppose the commission of acts of violence, murder or torture under the guise of religion. By omitting Michael Savage’s strong endorsement of all religions and all religious practice that supports moral values, family values and freedom, CAIR destroyed the value of the copyright material and the performance as a whole, at least to the extent that people gave credence to the CAIR packaging of the content. (from Complaint, ¶ 21)

Michael Savage’s right to speech is protected by both the First Amendment and in Savage’s view is also biblically required. “Surely the Lord God will do nothing, but he revealeth his secret unto his servants the prophets. The lion hath roared, who will not fear? the Lord God hath spoken, who can but prophesy?” (Amos 3:7 8). It is essence of freedom that voices can be raised strongly and without fear of illegal retaliation. CAIR attempted to silence Michael Savage by stealing his work, misrepresenting it and then seeking to have advertisers drop his show. This is a violation of Michael Savage’s rights to speech and religious beliefs. (from Complaint, ¶ 28)

As set forth herein, CAIR is not a civil rights organization but is instead a political organization designed to advance a political agenda that is directly opposed to the existence of a free society that includes respect and dignity for all people and all religions . . . The copyright infringement herein is part of this plan. CAIR’s fundamental purpose is to be a lobbyist for foreign interests. (from Complaint, ¶ 30)

Plaintiff contends that CAIR is still associated with foreign groups as set forth more fully herein and that the wrongful intent in violating the copyright as set forth herein was based in part upon a desire to silence a vocal critic of Hamas. (from Complaint, ¶ 39)

What all this has to do with a copyright infringement claim, I have no idea. The complaint is drafted as if copyright law provides a catch-all cause of action for associating with "foreign interests" and criticizing someone's work unfairly. News flash: it doesn't.

What's more, the fair use doctrine protects CAIR's use of portions of Savage's radio show. Fair use is a defense to copyright infringement that permits the use of a copyrighted work without the copyright owner's permission for limited and "transformative" uses, such as criticism, commentary, news reporting, parody, and teaching. There are four factors that courts generally look at when deciding whether a use is fair: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and importance of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work. 17 U.S.C. § 107.

Savage's complaint seems to latch on to the first factor, arguing (preposterously) that CAIR used the excerpt for "fund raising" purposes and that CAIR is not really a civil rights or charitable organization. But it wholly misses the critical inquiry, which is whether the use of the work was "transformative." A work is "transformative" when it does not merely supersede the original work, but "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). CAIR's use is obviously transformative because it adds a wholly new message and purpose -- condemnation of Savage's original message and a call to action, respectively.

Things also look grim for Savage on the remaining three fair use factors. The second factor -- the "nature of the copyrighted work" -- weighs slightly in favor of fair use because the "work" in question is more factual than creative, and the point of reproducing the excerpt was simply to report and document that such statements were made, not to usurp Savage's creative expression.

The third factor -- the amount and substantiality of the portion used -- also favors fair use, at least as far as I can tell. I'm not a listener, so I don't know how long Savage's radio show is, but four minutes isn't a lot of material taken out of what is probably an hour long show. Furthermore, the complaint makes no allegation that CAIR took the "heart" of the broadcast. In fact, Savage's argument is to the contrary -- he claims that CAIR took isolated portions of his work out of context.

The fourth factor -- the effect of the use upon the potential market for the work --- weighs strongly in favor of fair use. There isn't even a colorable argument that CAIR's use damaged the market for Savage's work in the way contemplated by the statute. Savage alleges that CAIR's mischaracterization of his work damaged its public image, but the harm flowing from criticism of a work is not cognizable harm for purposes of the fourth factor. See, e.g., Cambell, 510 U.S. at 591-92 ("When a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act."); NXIVM Corp. v. Ross Inst. 364 F.3d 471, 482 (2d Cir. 2004) ("If criticisms . . . kill demand for plaintiffs' service, that is the price that, under the First Amendment, must be paid in the open marketplace for ideas."). The harm that the law recognizes is harm flowing from an infringing work acting as a substitute for the original work -- nothing could be further from the case here.

It is especially ironic that Savage sees himself as the champion of free speech in this case, when he is blatantly trying to use copyright law to silence speech critical of him. In my view, Savage has every right to make hateful comments about whomever he likes. But when he makes statements on the radio, he opens himself up to criticism of his beliefs and the specific statements that he makes. It is disingenous for him to claim that he is somehow being "silenced" when opponents call attention to the content of his hateful speech. In this instance, the most effective way for CAIR to drive home its criticism was to reproduce an audio clip of portions of Savage's program and to let readers hear for themselves. Savage is just plain wrong that copyright law provides a mechanism for silencing this type of criticism. If he were right, copyright law would raise grave First Amendment concerns.

P.S. Check out the badge that appears on Savage's website. It says "Protect Freedom of Speech! Click to Support the Michael Savage Legal Defense Fund." I'm speechless.

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