July 28, 2008 | By Kurt Opsahl

Fair Use Prevails Over Michael Savage's Copyright Claims

On Friday, a U.S. District Court granted the motion for judgment on the pleadings we and our co-counsel Tom Burke of Davis Wright Tremaine LLP filed in a copyright infringement suit brought by talk show host Michael Savage against the Council on American-Islamic Relations. Savage had sued CAIR back in December 2007, alleging that CAIR infringed the copyright in his show when it posted on its web site brief excerpts from Savage's radio program in order to criticize Savage's remarks. Savage also added a federal racketeering claim stemming from that alleged copyright infringement.

Judge Susan Illston recognized that CAIR's use of four minutes from one of Savage's two hour radio programs to criticize Savage is protected under the fair use doctrine. The Copyright Act specifically makes clear that third parties may utilize copyrighted works for purposes of commentary or criticism, as CAIR did in this case. For purposes of the motion, the Court assumed all the allegations in the complaint were true, and still found that CAIR's use of the excerpts was protected. As the Court noted:

The complaint affirmatively asserts that the purpose and character of [CAIR's] use of the limited excerpts from the radio show was to criticize publicly the anti-Muslim message of those excerpts. To comment on [Savage's] statements without reference or citation to them would not only render [CAIR's] criticism less reliable, but be unfair to [Savage]. Further, it was not unreasonable for [CAIR] 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 [Savage] made the statements.

Savage was also unable to show any copyright damages from the criticism. As the Court noted,

plaintiff fails to allege or suggest an impact on the actual or potential sale, marketability, or demand for the original, copyrighted work. ... Plaintiff instead alleges that defendants caused him financial loss in advertising revenue. Assuming the truth of this allegation, it relates only to the economic impact on future shows, and has no impact on the market for the original, copyrighted show on October 29, 2007.

Copyright law protects the market for the the copyrighted work, but was never designed to protect the author against having to face critics, or the consequences of criticism. Even if Savage's advertisers choose to pull their ads because of a compelling critique, his free speech rights have not been violated. Savage, who has his own daily radio program with millions of listeners, remains free to compete in the marketplace of ideas, even though he is now prevented from using the legal process to silence critics.

After carefully analyzing Savage's copyright claim, the Court concluded "that the defects of plaintiff’s Second Amended Complaint will not be cured by amendment, [and therefore] plaintiff’s copyright claim is dismissed without leave to amend."

The Court also addressed Savage's racketeering claim. Finding numerous flaws in the complaint, including a failure to comply with the Federal Rules of Civil Procedure, the Court dismissed the claim with leave to amend.

According to the San Francisco Chronicle, Savage's attorney Daniel Horowitz acknowledged that the opinion was "very carefully thought-out," but promised to file a revised complaint on the racketeering charges. Savage's own website, however, was soliciting donations to "Help me file an appeal."


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