District Court Spanks Michael Savage Suit: Using Audio Clip for Criticism = Fair Use

In a huge victory for freedom of speech, on Friday a federal district court in California dismissed conservative talk show host Michael Savage’s lawsuit against the Council on American-Islamic Relations (CAIR).  The decision reaffirms that using limited portions of someone’s copyrighted work for purposes of criticizing that work generally falls within copyright law’s fair use exception.

Savage’s complaint alleged that CAIR violated Savage’s copyright by posting a four-minute audio clip taken from one of Savage’s shows, in which Savage made disparaging and hateful remarks about Muslims and Islam.  CAIR posted the audio clip on its website along with detailed criticism of Savage’s remarks and a call for "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.”

Besides alleging copyright infringement, Savage also claimed that CAIR violated federal racketeering laws.  In particular, he alleged that CAIR’s copyright infringement was part of a criminal conspiracy to silence those speaking out against Islam and to further the goals of foreign terrorist organizations. For good measure, Savage alleged that CAIR is the domestic branch of a foreign terror organization posing as a civil rights organization, and that CAIR had something or other to do with 9/11.

I previously expressed my hope that this troubling lawsuit would at least result in a court decision reaffirming for the Internet context that using reasonable portions of someone’s copyrighted work in order to criticize it is fair use. Well, the court’s well-reasoned opinion fulfills that hope in spades. The court held that CAIR’s use of the audio clip for purposes of criticism and commentary was fair use as a matter of law.  In her opinion, District Judge Susan Illston made the following important points:

  • Criticism and commentary have a strong claim to fair use that can overcome allegations that a particular use was “commercial.” Thus, Savage’s allegation that CAIR posted the audio clip near a “donate” button on its web page did not negate the critical -- and thus protected – character of CAIR’s use.
  • Using limited audio excerpts from Savage’s program was necessary for CAIR to comment upon and criticize his statements.  “To comment on plaintiff’s statements without reference or citation to them would not only render defendants’ criticism less reliable, but be unfair to plaintiff. Further, it was not unreasonable for defendants to provide the actual audio excerpts, since they reaffirmed the authenticity of the criticized statements and provided the audience with the tone and manner in which plaintiff made the statements.” Savage v. Council on American-Islamic Relations, No. C 07-6076, slip op. at 8 (N.D. Cal. July 25, 2008).
  • Using four minutes of a two-hour program was “small” under the third factor looking at amount and substantiality of the original work used. Moreover, the court pointed to Savage’s allegations that CAIR had taken his words “out of context” in rejecting his legal argument that the audio clip took the “heart” of his program.
  • There was no indication of a harm to the value or market for the copyrighted work. The court stressed that the work was transformative and not a “substitute” for the original. Internet users listening to the excerpt on CAIR’s site and potentially donating to CAIR were a “different audience” from the audience for Savage’s work. The court also followed the well-established principle that “critique or commentary of the original work, such as a parody, that kills demand for the original by force of its criticism, rather than by supplying the demands of the market, does not create a cognizable harm under the Copyright Act.”  Id. at 11.

The court also dismissed Savage’s federal racketeering claim on several grounds, finding that Savage had not connected CAIR’s alleged involvement with international terrorism to any injury suffered by him or his show, and that the complaint’s “shotgun” approach – replete with conclusory allegations without factual support and irrelevant claims of wrongdoing -- violated federal rules of pleading.  The court also expressed concern about the First Amendment implications of the racketeering claim: “Nearly all – and quite possibly all – of the defendants’ activities that trouble plaintiff and serve as the basis for the defendants’ alleged involvement in a RICO conspiracy are related to speech and thus have First Amendment protection.” Id. at 14.  But, in the end, the court did not rest its holding on First Amendment grounds.

Judge Illston gave Savage permission to amend the racketeering portion of his complaint, but not the copyright portion. Congratulations to Thomas R. Burke (Davis Wright Tremaine) and Matt Zimmerman (EFF) for their excellent work getting this case dismissed.

For more information about the case and copies of underlying court documents, see our database entry, Savage v. CAIR.


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It will be appealed and I predict that the judges' ruling will be overturned on FINAL appeal. As the fat lady said, it ain't over 'till its over.


True enough, there might be an appeal.  I look forward to it: maybe then we'll have an even stronger precedent protecting critical speech on the Internet.

appeal my behind

This savage should be tooded where he belongs;the garbage can

Can CAIR claim legal

Can CAIR claim legal expenses against Savage?

Can CAIR claim legal

Good question. The default rule in our U.S. legal system is that a prevailing defendant cannot get attorney's fees, absent a statute or other source of law authorizing fee-shifting.  A common example of this kind of statute is an anti-SLAPP statute, which allows the defendant to bring a special motion to strike or dismiss the complaint, and provides for attorneys' fees and costs if the defendant is successful. But, CAIR did not bring an anti-SLAPP motion in this case.  (Defendants can file anti-SLAPP motions in federal court in California, but some federal courts hold that they do not apply to federal copyright claims.) In other, egregious situations, a defendant may be able to recover attorneys' fees as sanctions against the plaintiff or the plaintiff's attorney, but it is unlikely that a court would view this case as frivolous enough to warrant such sanctions.