The blogosphere is buzzing about Perez Hilton's recent foray into copyright bullying. Last week, the celebrity blogger, whose real name is Mario Lavandeira, sent a DMCA takedown notice to YouTube, claiming that a new advocacy ad from the National Organization for Marriage ("NOM") which was posted on the video-sharing site violated his copyright. (NOM is the anti-gay-marriage group that brought us the inadvertently hysterical ad "Gathering Storm," which spawned some hilarious parodies including an especially good one from Stephen Colbert.) In response to Lavandeira's notice, YouTube removed the video.
According to NOM, the new ad "highlights the efforts of same-sex marriage activists to silence and discredit pro-marriage advocates, calling them 'liars,' 'bigots,' and worse." The ad, which appears in 30-second and 60-second versions, uses approximately three seconds of footage from Mr. Lavandeira's video blog, in which he calls Miss California Carrie Prejean a “dumb bitch.”
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. To me, this looks like a bad legal and P.R. call, and Lavandeira's being pummeled for it online.
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.
Mr. Lavandeira also apparently sent a cease-and-desist letter to NOM, demanding that it stop broadcasting the ad on television. NOM's lawyers shot back a letter refusing his demand on fair use grounds:
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.
It's sad to see someone like Lavandeira -- who has so much to gain from a more reasonable view of copyright -- taking such a squinting view of fair use. He has achieved nothing but making himself look bad and probably driving more traffic to the NOM ad. As Ben Sheffner of Copyrights & Campaigns observes, Lavandeira may even get himself sued for violating 17 U.S.C. § 512(f), which creates liability for knowingly making false claims in a DMCA takedown notice.
Perez Hilton . . . 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.
This brings to mind one of the early posts on the CMLP blog, in which David Ardia examined Lavandeira's eccentric use of photographs from other sites and mused that "just saying someone looks 'asstastic' isn't likely to be sufficient [for fair use]."
Making the whole thing even stranger, only last month it was NOM playing the role of the copyright bully. In mid-April, it sent DMCA notices to YouTube demanding the take down of leaked audition outtakes from the "Gathering Storm" ad and a clip from MSNBC’s Rachel Maddow Show commenting on the outtakes. Regarding this latter takedown, Maddow chided NOM on the air:
A cable news segment critical of an issue ad violates the copyright of the organization that made that ad? So you can pay to put it on TV, but I can't address its merits on TV? Come now anti-gay-marriage people, I know your campaign is about how scared we should all be of gay marriage, but now you're scared of people talking about your stance on it?
Maybe this is some sort of weird karmic revenge.
Update: Simon Owens published this excellent post on the takedown, with interview commentary from Brian Brown, executive director of NOM, and Ben Sheffner of Copyrights & Campaigns. Sheffner points out to Owens something important that I failed to discuss above. He notes that, in considering fair use, courts don't recognize the harm that flows from stinging criticism as a cognizable harm to the copyright owner's work: "If people are less likely to support Hilton and his positions after watching the National Organization for Marriage ad, that’s too bad, the law does not recognize that as a sort of harm that copyright is meant to protect.” Good stuff.
Update 2: Ben Sheffner has posted a copy of Lavandeira's cease-and-desist letter to NOM.