Brave New Films 501 (C)(4) v. Weiner et al

Filing 40

MOTION for Partial Summary Judgment PLAINTIFF BRAVE NEW FILMS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT filed by Brave New Films 501 (C)(4). Motion Hearing set for 4/3/2009 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Pierce, Sheila) (Filed on 2/27/2009)

Brave New Films 501 (C)(4) v. Weiner et al

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Anthony T. Falzone (SBN 190845) Julie A. Ahrens (SBN 230170) STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] William F. Abrams (SBN 88805) Sheila M. Pierce (SBN 232610) BINGHAM MCCUTCHEN LLP 1900 University Avenue East Palo Alto, CA 94303-2223 Telephone: [phone] Facsimile: 650.849.4800 E-mail: [e-mail] Attorneys for Plaintiff BRAVE NEW FILMS 501(c)(4) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

BRAVE NEW FILMS 501(C)(4), v. Plaintiff,

No. CV 08-04703 SI PLAINTIFF BRAVE NEW FILMS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Date: April 3, 2009 Time: 9:00 a.m. Location: Courtroom 10 Honorable Susan Illston

MICHAEL WEINER aka MICHAEL SAVAGE, and ORIGINAL TALK RADIO NETWORK, INC., Defendants.

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NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE THAT on April 3, 2009, at 9:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 10, of the United States District Court for the Northern District of California, San Francisco Division, located at 450 Golden Gate Avenue, San Francisco, California, plaintiff Brave New Films 501(c)(4) will and hereby does move this Court for an order granting it summary judgment and a declaration that Brave New Films' use of defendant Michael Savage's copyrighted material is protected by the Fair Use Doctrine and enjoining Michael Savage and Original Talk Radio Network from further attempts to suppress protected speech regarding Mr. Savage. This Motion is made on the grounds that there are no genuine issues of material fact that Brave New Films' use of excerpts from Savage's October 29, 2007 broadcast is a fair use. This Motion is based on this Notice of Motion, the Memorandum of Points and Authorities below, the accompanying supporting declarations, the Request for Judicial Notice, the pleadings, files, and records in this action, and on all such other evidence and argument as may be presented by plaintiff at the hearing on this Motion. DATED: February 17. 2009

Bingham McCutchen LLP

By:

/s/ William F. Abrams William F. Abrams Attorneys for Plaintiff Brave New Films 501(c)(4)

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TABLE OF CONTENTS Page I. II. III. IV. RELIEF SOUGHT ............................................................................................................. 1 STATEMENT OF ISSUES TO BE DECIDED ................................................................ 1 INTRODUCTION ............................................................................................................. 1 BACKGROUND ............................................................................................................... 3 A. Savage's Tirade Against Muslims ......................................................................... 3 B. Savage's Attempts To Silence His Critics ............................................................. 3 1. Round One: Savage Sues CAIR And Loses ............................................. 3 2. Round Two: OTRN Goes After Brave New Films Asserting Infringement Of Savage's Copyrights ....................................................... 5 ARGUMENT ..................................................................................................................... 7 A. Summary Judgment Standard ................................................................................ 7 B. Declaratory Judgment Standard ............................................................................. 8 C. Fair Use Protects Brave New Films' Work As A Matter Of Law.......................... 8 1. The Purpose And Character Of The Use Weighs Heavily In Favor Of Brave New Films Because It Used The Copyrighted Material For Criticism And Commentary .............................................................. 10 2. The Informational Nature Of Savage's Copyrighted Work Favors A Finding Of Fair Use ............................................................................. 11 3. Brave New Films Used A Minor Portion Of The Copyrighted Work To Accomplish Its Purpose ............................................................ 12 4. Brave New Films' Video Has Caused No Cognizable Harm To The Potential Market For Or Value Of The Copyrighted Work.............. 13 CONCLUSION ................................................................................................................ 14

V.

VI.

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TABLE OF AUTHORITIES Page CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .............................................................................................................. 7, 8 Beyene v. Coleman Sec. Serv., Inc., 854 F.2d 1179 (9th Cir. 1988)................................................................................................... 7 C.A.R. Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474 (9th Cir. 2000)..................................................................................................... 7 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ......................................................................................................... passim Eldred v. Ashcroft, 537 U.S. 186 (2003) .................................................................................................................. 9 Elvis Presley Enter. v. Passport Video, 357 F.3d 896 (9th Cir. 2003)..................................................................................................... 9 Eureka Fed. Sav. And Loan Ass'n v. American Cas. Co. of Reading, Pa., 873 F. 2d 229 (9th Cir. 1989).................................................................................................... 8 Fisher v. Dees, 794 F.2d 432 (9th Cir.1986).................................................................................................... 10 Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) .......................................................................................................... 10, 12 Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148 (9th Cir. 1986)........................................................................................... 10, 14 L.A. News Serv. v. Reuters Television Int'l, Ltd., 149 F.3d 987 (9th Cir. 1998)................................................................................................... 12 Leadsinger, Inc., v. BMG Music Publ'g., 512 F.3d 522 (9th Cir. 2008)................................................................................................... 10 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) .................................................................................................................. 8 MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) .................................................................................................................. 8

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TABLE OF AUTHORITIES (continued)

Page

Nat'l Ass'n of Gov't Employees v. BUCI Television, Inc., 118 F. Supp. 2d 126 (D. Mass. 2000) ..................................................................................... 12 NXIVM Corp. v. Ross Institute, 364 F.3d 471 (2nd Cir. 2004).............................................................................................. 9, 10 Savage v. Council on American-Islamic Relations, Inc., No. 3:07-cv-06076-SI, Docket No. 6 ........................................................................................ 4 Wall Data Inc. v. L.A. County Sheriff's Dept., 447 F.3d 769 (9th Cir. 2006)................................................................................................... 11

STATUTES 17 U.S.C. § 107(1) ........................................................................................................................ 10 17 U.S.C. § 107(2) ........................................................................................................................ 11 17 U.S.C. § 107(3) ........................................................................................................................ 12 17 U.S.C. § 107(4) ........................................................................................................................ 13 17 U.S.C. § 512(f) ........................................................................................................................... 7 Section 107 of the Copyright Act of 1976 ................................................................................ 9, 10

OTHER AUTHORITIES Fed.R.Civ.P. 56(c)........................................................................................................................... 7 Fed.R.Civ.P. 56(e)(2) ...................................................................................................................... 7

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I.

RELIEF SOUGHT Brave New Films moves this Court for summary judgment and an Order: (1)

declaring that Brave New Films' use of excerpts from the October 29, 2007 broadcast of The Michael Savage Show is a fair use; and (2) enjoining defendants Original Talk Radio Network and Michael Savage from threatening or bringing legal action against Brave New Films relating to the fair use of the Video. II. STATEMENT OF ISSUES TO BE DECIDED 1. Whether Brave New Films is entitled to a declaration that its use of excerpts from Savage's October 29, 2007 broadcast of The Savage Nation is a fair use. 2. Whether Savage and Original Talk Radio Network should be enjoined from any further attempts to bring legal action against Brave New Films relating to the Video. III. INTRODUCTION This is the second lawsuit arising out of attempts by nationally-syndicated radio host Michael Savage ("Savage") to silence criticism of him, and the anti-Muslim comments he made on his October 29, 2007 radio show. During that show, Savage went on an extended tirade against Muslims, Islam and the Quran during which he (among other things) declared the Quran to be "a book of hate," denigrated Muslims as "throwbacks" who should be deported "without due process," and urged his listeners to confront Muslims publicly: "Speak it out at the supermarket! Tell them what you think of Islam. Tell them what you think of Muslims. Tell them what you think of these things." These remarks drew sharp criticism from Muslims and many others, which Savage and his radio network have twice tried to silence by the ostensible enforcement of Savage's copyrights. The first time around, Savage sued the Council on American-Islamic Relations ("CAIR") for copyright infringement after CAIR posted a detailed critique of Savage's comments and around four minutes of audio excerpts documenting them. The Court dismissed that claim in July 2008 on CAIR's motion for judgment on the pleadings, holding that CAIR's use of excerpts from Mr. Savage's show for the purpose of documenting and critiquing his statements was protected by the Fair Use Doctrine as a matter of law. A/72854891.6 1

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Approximately three months later, Savage's radio network, Defendant Original Talk Radio Network, Inc. ("OTRN"), took aim at still more criticism of Savage by Brave New Films. Brave New Films had created its own video entitled "Michael Savage Hates Muslims" (the "Video") and posted that video on its YouTube channel. Much like the CAIR video, Brave New Films' Video documented Savage's tirade using roughly one minute of excerpts from his October 29 show, and urged viewers to take action in protest of Savage's comments. In October 2008, OTRN delivered a takedown notice to YouTube pursuant to the Digital Millennium Copyright Act ("DMCA"), contending that the Video infringed the copyrights in the October 29, 2007 broadcast, which are owned by Savage. As a result of that takedown notice, YouTube removed not only "Michael Savage Hates Muslims" from Brave New Films' channel, but disabled Brave New Films' entire channel at a critical time in the presidential election cycle, rendering unavailable a large number of videos that expressed important political views, and just as Brave New Films ran a full-page ad in the New York Times. While the channel was restored in less than a day following a quick response by Brave New Films' attorneys, the "Michael Savage Hates Muslims" video was removed for eighteen days and restored following Brave New Films' submission of a DMCA counter-notice to YouTube denying any infringement of Savage's rights. Following the removal of its content from YouTube, Brave New Films initiated this action for declaratory relief and damages pursuant to the DMCA. Like CAIR's video, "Michael Savage Hates Muslims" is protected by the Fair Use Doctrine as a matter of law. That doctrine protects against what Savage and OTRN have tried to do here for a second time ­ assert Savage's copyrights against those who seek to criticize him and the views he expressed. The plain and undisputed facts establish that "Michael Savage Hates Muslims" is protected by the First Amendment and does not infringe Savage's copyrights. The Court should therefore grant summary adjudication in favor of Brave New Films on its claim for declaratory judgment, and enter an order declaring that Brave New Films is protected by the Fair Use Doctrine and enjoining Savage and OTRN from any further legal action relating to the fair use of the Video. 2
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IV.

BACKGROUND A. Savage's Tirade Against Muslims Savage is the host of The Savage Nation, a nationally syndicated radio program.

On his October 29, 2007 radio program, Savage went on a tirade against Muslims and Islam, at various times attacking Islam as a religion of hate and slavery and urging listeners to confront Muslims at the grocery store. He said: I don't want to hear one more word about Islam. Take your religion and shove it up your behind. I'm sick of you. ... Your Bible has been revised several times. The Jewish Bible has been revised several times. Not the Quran though. They still live in the 7th Century. ... What kind of world are you living in that you let them in here with that throw back document in their hand, which is a book of hate. Don't tell me I need reeducation. They need deportation. ... Throwback bastards. I'm so sick of them. I'm so sick of the brainwashing about Islam and Muslims and the Quran. [Yells] Shove it! Shove it all! I'm sick of it! ... These throwbacks think they're better than you underneath it all. And 90% of them are on welfare. ... It's time to stop hiding behind your pillow. [Yells] Speak it out at the supermarket! Tell them what you think of Islam. Tell them what you think of Muslims. Tell them what you think of these things. Stop hiding what you feel. Say it to everybody that you meet. Let them prove it's a religion of peace! Say it on the supermarket line, and don't care what stares you get from those dumb idiots who are checking out behind you with their Cracker Jacks. Say it to everybody you meet wherever you go. ... Make no mistake about it, the Quran is not a document of freedom. The Quran is a document of slavery and chattel. It teaches you that you are a slave. See Request For Judicial Notice In Support of Plaintiff Brave New Films 501(c)(4)'s Motion For Partial Summary Judgment ("RJN"), Exs. B at 3:3-4:8, C at 2:8-14. B. Savage's Attempts To Silence His Critics 1. Round One: Savage Sues CAIR And Loses

Savage's comments drew strong backlash from the Muslim community and well beyond. The Council on American-Islamic Relations ("CAIR") posted a detailed critique of Savage's anti-Muslim remarks, entitled "National Radio Host Goes On Anti-Muslim Tirade."
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RJN, Ex. C at 2:14-16. In connection with that critique, CAIR posted approximately four minutes of excerpts from his show, documenting the statements quoted above and the manner in which Savage made them. Id., Exs. C at 2:16-18, F, G. Shortly after that, Savage sued CAIR in this Court. In a twenty-three page complaint, Savage accused CAIR of infringing his copyrights by posting excerpts of his show in connection with its criticism of him, and went on to launch a wide-ranging and meandering attack on CAIR, accusing it of participating in a conspiracy to silence anti-Muslim speech, being an agent of foreign terrorists, and participating in a conspiracy to commit murder through terrorist acts.1 Id., Ex. A. CAIR answered Savage's complaint and moved for judgment on the pleadings as to all claims against it. See RJN, Ex. B. On July 25, 2008, this Court granted CAIR's motion and dismissed Savage's copyright infringement claim without leave to amend, holding CAIR's use of excerpts from Savage's show for the purpose of documenting and criticizing his remarks was fair use as a matter of law. Id., Ex. C. On August 15, 2008, the Court dismissed Savage's complaint with prejudice. Id., Ex. D. This Court found that the majority of the four fair use factors, including the most important factors, favored CAIR. As for the first factor, this Court found that the purpose and character of CAIR's use of the limited excerpts from the radio show was to publicly criticize the anti-Muslim message of those excerpts, and that use of the actual audio excerpts was reasonable because they "reaffirmed the authenticity of the criticized statements and provided the audience with the tone and manner in which [Savage] made the statements." Id., Ex. C at 8:11-12. On the second factor ­ the nature of the copyrighted work ­ this Court recognized that Savage's call-in radio talk show is likely more informational than creative. Id. at 8:18-19. But in ruling on CAIR's motion to dismiss, the Court was required to assume the truth of Savage's allegation that his show was creative, and therefore found the second factor weighed slightly in Savage's favor.
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Savage filed his complaint on December 3, 2007. Savage filed a First Amended Complaint on December 25, 2007, at which time he added a RICO claim and additional defendants. Savage v. Council on American-Islamic Relations, Inc., No. 3:07-cv-06076-SI, Docket No. 6. On February 14, 2008, Savage filed a Second Amended Complaint. Id., No. 18.
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Id. at 9:9-11. Evaluating the amount and substantiality of the portion of the work used under the third fair use factor, this Court found that CAIR's use of four minutes of Savage's two-hour radio program was a small amount that was reasonably necessary to convey CAIR's criticisms of Savage's statements. Id. at 10:19-11:5. Finally, analyzing the effect of CAIR's use on the potential market for or value of the copyrighted work, this Court held that this factor strongly favored CAIR. Id. at 13:2-4. The Court noted that Savage made no allegation that he "currently has, or ever had, any kind of market for the copyrighted work at issue outside its airing on the October 29, 2007 radio show. Further, he does not allege any attempts or plans to sell or license the material or derivatives thereof." Id. at 12:4-6. The only alleged market harm was caused by CAIR's criticism and this is not a damage the law recognizes. The Court made clear that CAIR's use of the audio clips to criticize Savage serves a different function than the original work and this transformative use could not supersede the original as a market substitute. Id. at 12:19-13:4. 2. Round Two: OTRN Goes After Brave New Films Asserting Infringement Of Savage's Copyrights

CAIR was not the only organization unhappy about Savage's anti-Muslim remarks. In January 2008, Brave New Films created the Video and posted it on the Brave New Films' website. Declaration of James Gilliam In Support of Plaintiff Brave New Films 501(c)(4)'s Motion For Partial Summary Judgment ("Gilliam Decl.") at ¶ 2. Brave New Films also posted the Video on its YouTube channel, which includes hundreds of other Brave New Films videos, nearly all focusing on politics and social issues. Id. at ¶ 3. Altogether, Brave New Films videos have been viewed millions of times on YouTube. Id. at ¶ 4. Much like CAIR's criticism of Savage, Brave New Films' Video features excerpts from Savage's October 29, 2007 show, lists several of his advertisers, and urges the viewer to speak out against Savage and help "fight the bully" at www.nosavage.org. Id. at ¶ 5; see also Brave New Films' Complaint For Declaratory Judgment and Damages at ¶ 17, Ex. B. Since it was posted on YouTube, "Michael Savage Hates Muslims" has been viewed more than 150,000 times. Gilliam Decl. at ¶ 7. On September 29, 2008, about two months after this Court dismissed Savage's copyright claim against CAIR on fair use grounds, attorneys for Savage's radio network
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delivered a letter to YouTube, Inc. ("YouTube"), addressed to YouTube's "DMCA Complaints" department. Id. at ¶ 8; see also Defendant Michael Weiner aka Michael Savage's Notice of Motion and Motion to Dismiss ("MTD") at 2:10-18, Ex. A. In that letter, attorney Carter Glahn asserted under penalty of perjury that his firm, Severaid & Glahn, PC, represented the owner of exclusive rights in content from The Michael Savage Show. MTD at Ex. A. Savage is the registered owner of the copyright to the October 29, 2007 broadcast of The Michael Savage Show. RJN, Ex. E. Mr. Glahn stated that his office represented OTRN with regards to the infringement of certain specified material. Id. Mr. Glahn demanded that YouTube immediately remove "Michael Savage Hates Muslims," and 258 other videos that OTRN asserted were infringing its "exclusive rights" of "publication[], broadcast[], and/or reproduction[]." Id. Upon receiving OTRN's letter, YouTube disabled access to the Video and also disabled access to Brave New Films' entire YouTube channel. Gilliam Decl. at ¶ 9. This occurred at approximately 9 p.m. on October 2, 2008 ­ a critical time for Brave New Films, because among other things, Brave New Films is very active in national politics. Id. at ¶ 10. It was running a full-page ad the next morning in the New York Times calling for presidential candidate Senator John McCain to make a full and public release of his health records. Id. While Brave New Films' lawyers were successful in convincing YouTube to restore Brave New Films' channel the following afternoon, the entire channel was down as the New York Times was being delivered to customers across the country, particularly on the east coast. Id. at ¶ 11. On October 3, 2008, Brave New Films submitted a counter-notice to YouTube, explaining that the Video had been taken down in error. Id. at ¶ 12, Ex. A. Nonetheless, the Video remained inaccessible on YouTube for eighteen days, until it was restored pursuant to YouTube's policies on October 20, 2008. Id. at ¶ 13. In light of OTRN's assertion that the Video infringes copyrights in Savage's show, and upon determining that Savage is the registered owner of the copyrights in his October 29, 2007 broadcast, Brave New Films filed this action for declaratory judgment against OTRN and Savage, seeking a judgment from the Court holding "Michael Savage Hates Muslims" does
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undisputed. Indeed, they are not materially different from the facts underlying Savage's copyright claim against CAIR, and Brave New Films is entitled to judgment on the same grounds. Brave New Films therefore moves for summary adjudication of its declaratory judgment claim on the ground the Fair Use Doctrine protects its use of the audio clips from Savage's radio talk show.2 V. ARGUMENT A. Summary Judgment Standard Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). The burden then shifts to the nonmoving party to show that summary judgment is not appropriate. Id. (citation omitted). The adverse party "may not rely merely on allegations or denials in its own pleadings; rather, its response must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). Summary judgment will be entered against the non-moving party if that party does not present such specific facts. Id. Only admissible evidence may be considered in deciding a motion for summary judgment. Id.; Beyene v. Coleman Sec. Serv., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988). Facts are only material if they could affect the outcome of the suit under the governing substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
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If the Court grants Brave New Films' declaratory relief claim, Brave New Films still has a claim against Defendants for damages under 17 U.S.C. § 512(f).
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should draw all reasonable inferences in favor of the non-moving party, but the non-moving party must come forward with more than "the mere existence of a scintilla of evidence." Id. at 252, 255. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). B. Declaratory Judgment Standard This action was filed in response to Defendants' assertion that Brave New Films' Video infringed Savage's copyrighted material by issuing an improper takedown notice. This Court, therefore, has subject matter jurisdiction to issue a declaratory judgment regarding the parties' legal rights as they pertain to the copyrighted material. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (holding that declaratory relief is proper where "the facts alleged, under all the circumstances, show that there is a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment"). Declaratory relief is proper here because it will not only clarify and settle the legal relations between the parties, but it will also provide Brave New Films relief from the uncertainty, insecurity and controversy giving rise to the proceeding. See Eureka Fed. Sav. And Loan Ass'n v. American Cas. Co. of Reading, Pa., 873 F. 2d 229, 231 (9th Cir. 1989). Without a declaration from the Court stating that its use of Savage's October 29, 2007 broadcast is protected by the Fair Use Doctrine, Brave New Films will continue under a cloud of uncertainty and insecurity that at any time Savage can issue another takedown notice or file a lawsuit. Only a declaration from the Court can settle this uncertainty. C. Fair Use Protects Brave New Films' Work As A Matter Of Law OTRN and Savage submitted a takedown notice to YouTube asserting that Brave New Films' video "Michael Savage Hates Muslims" violates their exclusive rights of publication, broadcast, and reproduction. MTD, Ex. A. Savage is the registered owner of the copyrights in the October 29, 2007 broadcast of The Savage Nation, the source of the audio
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content from Savage's show used in the Video. RJN, Ex. E. As this Court held in Savage's copyright lawsuit against CAIR, the use of approximately one minute of excerpts from Savage's two-hour radio program to demonstrate and criticize Savage's overtly-hostile, intolerant, antiMuslim views is not an infringement of any of exclusive rights because it is protected by the Fair Use Doctrine as a matter of law. Summary judgment should therefore be entered in favor of Brave New Films on its claim for a declaratory judgment that the Video does not infringe the copyrights of Savage or OTRN. Section 107 of the Copyright Act of 1976 protects the fair use of another's copyrighted work: Notwithstanding the provisions of section 106 and 106A, the fair use of a copyrighted work ... for purposes such as criticism [and] comment ... is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (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 substantiality 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 (2005). Fair use places important limits on copyright holders' exclusive rights insofar as they might impede certain forms of free expression. Indeed, fair use is a "First Amendment safeguard" that "is intended to preserve the values enshrined in the First Amendment." Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003); Elvis Presley Enter. v. Passport Video, 357 F.3d 896, 898 (9th Cir. 2003). See also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (parody and other forms of criticism "can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one"); NXIVM Corp. v. Ross Institute, 364 F.3d 471, 482 (2nd Cir. 2004) ("If criticisms on defendants' websites kill the demand for plaintiffs' service, that is the price that, under the First Amendment, must be paid in the open marketplace A/72854891.6 9 CV 08-04703 SI
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for ideas."). Fair use is a "mixed question of law and fact." Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985). In cases such as this where "there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as fair use of the copyrighted work." Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986); see, e.g., Fisher v. Dees, 794 F.2d 432, 435-36 (9th Cir.1986) (finding fair use where the operative facts were undisputed or assumed) (affirming that the court is to make fair use judgments, which "are legal in nature"); Leadsinger, Inc., v. BMG Music Publ'g., 512 F.3d 522, 530 (9th Cir. 2008). The four non-exclusive factors set out in the Copyright Act guide the fair use inquiry. See 17 U.S.C. § 107; Campbell, 510 U.S. at 577-78. No one factor is controlling; all must be "weighed together, in light of the purposes of copyright." Campbell, 510 U.S. at 578. Here, each of the four fair use factors weighs heavily in favor of Brave New Films. 1. The Purpose And Character Of The Use Weighs Heavily In Favor Of Brave New Films Because It Used The Copyrighted Material For Criticism And Commentary

The first factor examines the "purpose and character of the use." See 17 U.S.C. § 107(1). The focus of this analysis is the "transformative" nature of the accused work. See Campbell, 510 U.S. at 579. The Copyright Act expressly identifies criticism and commentary as examples of fair use. See 17 U.S.C. § 107. A work is presumed to be transformative where it criticizes or comments directly on the copyrighted work. See, e.g., Campbell, 510 U.S. at 583 (criticism and commentary "traditionally have had a claim to fair use protection."); NXIVM 364 F.3d at 477 (a strong presumption of transformative purpose arises where defendants use copyrighted work for purpose of criticism or commentary). Moreover, as this Court concluded in the CAIR litigation, there is no question the protection afforded by the fair use doctrine "extends to those with a political purpose, even those engaged in fundraising activities." RJN, Ex. C at 7:20-22.
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CV 08-04703 SI

PLAINTIFF BRAVE NEW FILMS' MOTION FOR PARTIAL SUMMARY JUDGMENT

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Here there is no dispute that Brave New Films used excerpts from Savage's copyrighted radio broadcast for the transformative purpose of publicly criticizing and commenting on Savage's anti-Muslim statements and point of view. Brave New Films created the Video and launched the website, www.nosavage.org, to inform the public about Savage's hateful views by showing the Video and providing information about how to contact advertisers and ask them to remove ads from Savage's radio show. Gilliam Decl. at ¶ 6. The website also includes information about Savage's retaliatory lawsuit against CAIR and criticizes his attempt to censor CAIR by suing the group for copyright infringement. Id. Like the video at issue in the CAIR lawsuit, Brave New Films' Video used short audio excerpts from The Michael Savage Show to directly criticize Savage for the very words he said during his October 29, 2007 show, to denounce his anti-Muslim views, and to draw public attention to Savage's bullying attempts to silence CAIR. Id. at ¶ 5. Defendants do not dispute these facts. As this Court held in the CAIR litigation, the use of Savage's work to comment on and criticize his statements and views is a transformative use of Savage's copyrighted material: 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. RJN, Ex. C at 8:8-12. Brave New Films, like CAIR, used Savage's material to criticize and comment on Savage's statements and views. Thus the first factor weighs heavily in favor of Brave New Films. 2. The Informational Nature Of Savage's Copyrighted Work Favors A Finding Of Fair Use

The second fair use factor examines the nature of the copyrighted work at issue. See 17 U.S.C. § 107(2). Under this factor, courts consider creative works "closer to the core of intended copyright protection" than informational works. Campbell, 510 U.S. at 586; see also
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Wall Data Inc. v. L.A. County Sheriff's Dept., 447 F.3d 769, 780 (9th Cir. 2006) (same). 11 CV 08-04703 SI
PLAINTIFF BRAVE NEW FILMS' MOTION FOR PARTIAL SUMMARY JUDGMENT

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Moreover, published works, like Savage's radio show, enjoy lesser protection from unauthorized uses than do unpublished works. See, e.g., Harper & Row, 471 U.S. at 551. The work at issue here is a talk show about matters of public affairs. The Michael Savage Show is an informational rather than creative work because it is a forum for Savage and his listeners to comment on matters of public interest. Courts have repeatedly found that such informational works, including newspapers, television news broadcasts, and the content of talk shows are subject to liberal appropriation for fair use purposes. See, e.g., L.A. News Serv. v. Reuters Television Int'l, Ltd., 149 F.3d 987, 994 (9th Cir. 1998) ("factual and informational nature" of television news footage weighed in favor of fair use determination); Nat'l Ass'n of Gov't Employees v. BUCI Television, Inc., 118 F. Supp. 2d 126, 128-29 (D. Mass. 2000) (reporter's acquisition, alteration, and distribution of videotape of copyrighted talk show program constituted fair use). Here Savage and OTRN cannot rebut the observable fact that Savage's show is an informational work that should be afforded less copyright protection from unauthorized uses. As this Court recognized in the CAIR litigation, "the original work at issue appears to be more informational than creative." RJN, Ex. C at 9:4-5. Indeed, here, unlike in the CAIR case, the Court is considering a summary judgment motion, and it need not accept Savage's unsupported allegation that his show is a creative work. Because Savage and OTRN cannot offer evidence that The Michael Savage Show is more creative than informational, the second factor weighs in favor of Brave New Films. 3. Brave New Films Used A Minor Portion Of The Copyrighted Work To Accomplish Its Purpose

The third factor evaluates "the amount and substantiality of the portion used in relation to the copyright as a whole." 17 U.S.C. § 107(3). While the Court must consider both the quality and quantity of the portion of the copyrighted work that was used, the central question is whether the extent of copying is reasonable in light of its purpose. See Campbell, 510 U.S. at 586.
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Brave New Films used the most egregious excerpts of Savage's broadcast to 12 CV 08-04703 SI
PLAINTIFF BRAVE NEW FILMS' MOTION FOR PARTIAL SUMMARY JUDGMENT

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accomplish its purpose of publicizing and criticizing Savage's anti-Muslim views and the intolerance he promotes on his show. The Video contains precisely the statements of Savage that most clearly demonstrate his hatred of Muslims. The Video runs a total of one minute and twenty-three seconds, and the audio excerpts from The Michael Savage Show play during approximately one minute in the Video. Gilliam Decl. at ¶ 2. In that minute, Savage instructs Muslims to "take [their] religion and shove it up [their] behind," urges his listeners to confront Muslims in the "supermarket line" and urges the federal government to deport Muslims. Complaint, Ex. B. In addition to playing this brief audio clip, the "Michael Savage Hates Muslims" video directs viewers to www.nosavage.org, a website dedicated to exposing and criticizing Savage's views, that lists certain companies that have advertised on Savage Nation, and urges viewers to "do something" about Savage's intolerance. Gilliam Decl. at ¶ 5. The one minute of audio used in the Video is a small fraction of the original copyrighted work--the two hour October 29 broadcast--and is very narrowly tailored to Brave New Films' purpose of publicly criticizing Savage and counteracting his bigotry.3 Brave New Films' reproduction of this small excerpt of the original work is more than reasonable. Brave New Films uses significantly less than the four minutes of audio that CAIR used for the same purpose, which this Court held was reasonable in light of CAIR's purpose to criticize Savage. RJN, Ex. C at 11:4-6. Like CAIR, Brave New Films "used the audio excerpts to comment on and rebut derogatory statements . . . and the amount used in reference to [Savage's] statements was reasonably necessary to convey the extent of [Savage's] comments." Id. at 10:2-11. The third factor thus strongly weighs in favor of Brave New Films. 4. Brave New Films' Video Has Caused No Cognizable Harm To The Potential Market For Or Value Of The Copyrighted Work

The fourth factor is "the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107(4). The Ninth Circuit teaches that "in determining
3

Savage registered the October 29, 2007 episode as a whole work. RJN, Ex. E. Thus the copyrighted work to compare here is the entire two hour episode. Id., Ex. C at 10:12-18.
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CV 08-04703 SI

PLAINTIFF BRAVE NEW FILMS' MOTION FOR PARTIAL SUMMARY JUDGMENT

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whether the use has harmed the work's value or market, the courts have focused on whether the infringing use: (1) tends to diminish or prejudice the potential sale of the work; or (2) tends to interfere with the marketability of the work; or (3) fulfills the demand for the original work." Hustler Magazine, 796 F.2d at 1155-56 (internal citations and quotations omitted). But critique or commentary of the original work "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." RJN, Ex. C at 11:14-17 (citing Campbell, 510 U.S. at 591-92). Moreover, a "use that has no demonstrative effect upon the market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create." Hustler Magazine, 796 F.2d at 1155 (internal quotation and citation omitted). Fair use protects "copying by others which does not materially impair the marketability of the work which is copied." Id. (internal quotation and citation omitted). Brave New Films' Video cannot affect the market for the original in a way that is cognizable under the fourth factor, that is, by acting as a substitute for it, or superseding its objects. See Campbell, 510 U.S. at 591. The only conceivable harm Savage and OTRN could claim to have suffered would be lost advertising revenue or listenership or harm to Savage's image. But any such damage suffered as a result of Brave New Films' criticism is not a harm the law recognizes. Criticism that decreases demand for the original work does not give rise to a cognizable harm under the Copyright Act. Campbell, 510 U.S. at 591-92. As this Court found in the CAIR case, "Any potential claims on the market impact of derivative works are barred as a matter of law because `there is no protectable derivative market for criticism' and impairing such a market by the effectiveness of critical commentary is not relevant under copyright law." RJN, Ex. C at 12 n.2 (quoting Campbell, 510 U.S. at 592-93). Because Savage and OTRN could not have suffered any legally cognizable market harm to the copyrighted work, the fourth factor greatly favors Brave New Films. VI. CONCLUSION Each step of the fair use analysis strongly favors Brave New Films. The Video uses copyrighted material for the transformative purpose of criticism and commentary; the A/72854891.6 14 CV 08-04703 SI
PLAINTIFF BRAVE NEW FILMS' MOTION FOR PARTIAL SUMMARY JUDGMENT

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copyrighted material is informational, not creative, Brave New Films uses only a small fraction of audio from Savage's show for its purpose, and its use presents no cognizable market harm. Accordingly, Brave New Films is entitled to a declaratory judgment that its Video does not infringe Savage or OTRN's copyrights and is protected by the Fair Use Doctrine as a matter of law and an order enjoining OTRN and Savage from threatening to bring legal action against Brave New Films relating to the Video. DATED: February 27, 2009 By: /s/_William F. Abrams___________ William F. Abrams (SBN 88805) Sheila M. Pierce (SBN 232610) BINGHAM MCCUTCHEN LLP 1900 University Avenue East Palo Alto, CA 94303-2223 Telephone: [phone] Facsimile: 650.849.4800 E-mail: [e-mail] Anthony T. Falzone (SBN 190845) Julie A. Ahrens (SBN 230170) STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Plaintiff Brave New Films 501(c)(4)

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CV 08-04703 SI

PLAINTIFF BRAVE NEW FILMS' MOTION FOR PARTIAL SUMMARY JUDGMENT