LOS ANGELES - The Fair Use Project at Stanford Law School's Center for Internet and Society and Bingham McCutchen LLP filed a lawsuit today against talk radio host Michael Savage and Original Talk Radio Network, Inc. (OTRN) on behalf of Brave New Films. The lawsuit, filed in the U.S. District Court for the Northern District of California, seeks declaratory relief and damages following improper efforts to silence Brave New Films' criticism of Savage over anti-Muslim remarks he made on his nationally syndicated radio show, The Savage Nation.
On January 18, 2008, Brave New Films created and uploaded to its YouTube channel "Michael Savage Hates Muslims," a short video that criticizes anti-Muslim comments Savage made on his October 29, 2007 radio broadcast. The video uses a total of one minute of audio excerpts from Savage's show in which Savage instructs Muslims to "take [their] religion and shove it up [their] behind" and urges his listeners to confront Muslims in the "supermarket line." In addition to playing this brief audio clip, the Brave New Films' video directs viewers to nosavage.org, a website dedicated to exposing and criticizing Savage's views.
On September 29, 2008, OTRN sent a takedown notice to YouTube demanding the removal of the "Michael Savage Hates Muslims" video. OTRN's notice resulted in YouTube removing the video and also temporarily disabling Brave New Films' entire YouTube channel, which contains approximately 300 videos and is the largest channel through which the company distributes its content.
"It's the ultimate irony that a raging bigot like Michael Savage, whose hate speech is protected by the Constitution, is trying to censor Brave New Films," said Robert Greenwald, President of Brave New Films. "Savage is using the law to bully his detractors. It's not working."
"OTRN must have known that its takedown notice was baseless not only because using limited amounts of copyrighted material for the purposes of criticism is a textbook case of fair use-but because Michael Savage lost an earlier case about this very same issue," said Anthony Falzone, executive director of the Fair Use Project at Stanford Law School, referring to a copyright claim Savage lost against the Council for American-Islamic Relations (CAIR). On July 25, 2008, the U.S. District Court for Northern California found that CAIR's use of a four-minute audio clip taken from Savage's October 29 broadcast for the purposes of criticizing his anti-Muslim statements was fair use as a matter of law. On August 15, the Court entered a final judgment dismissing the case in its entirety.
"Filmmakers like Brave New Films should not have their free speech rights violated by improper use of the copyright laws," said co-counsel William F. Abrams, a partner at Bingham McCutchen's Silicon Valley office and co-chair of Bingham's IP Practice Group. "The court previously said that it was fair use to use this content. This case enforces Brave New Films' rights to use it." Abrams is also a consulting professor at Stanford.
Brave New Films seeks declaration that "Michael Savage Hates Muslims" makes fair use of defendants' copyrighted material, and damages for misrepresentations OTRN made in the takedown notice it delivered to YouTube.
The Fair Use Project is representing Brave New Films pro bono, along with the national law firm Bingham McCutchen LLP.
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