Fair Use Battle Gets Weird, Kind of Stupid

Celeb blogger vs. beauty queen cont

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These are rough times for the concept of fair use, especially when lawyers citing fair use as a defense don’t seem to quite understand it much more than those sending out cease and desist letters. The latest fair use kafuffle stems from the already ridiculous spat between Miss California, Carrie Prejean, and Perez Hilton.

Please don’t make me sum up what that was about; read about it at Wikipedia and come back.

Great, so stupid questions, stupid answers, and endless, fruitless debates aside, Prejean became the official poster queen for the National Organization for Marriage, and after posting a rather classless video that got entirely too much media attention, Hilton went back to drawing penises on celebrity photos, his chief claim to fame.

Seizing on the controversy, the NOM posted a video featuring a few seconds of footage from the Miss USA pageant and a few seconds of Hilton’s classless video response. Soon after, the NOM received a cease and desist from Hilton’s attorney saying the organization had violated Hilton’s copyright. Miss USA pageant lawyers followed suit, no pun intended.

The NOM’s attorney correctly responded by noting that short pieces of video used for commentary or criticism were protected under fair use, and then had this to say:

“Here is a guy whose very public persona is an infringement on a celebrity and whose own website, a commercial enterprise, contains hundreds of images of celebrities now claims that his profane attack on a young contestant – which he himself posted on the Internet – is somehow protected under the law.”

He almost makes a good point. Perez Hilton’s pseudonym is an obvious and cheap spoof on billionaire heiress Paris Hilton. To my knowledge, a person’s name isn’t copyrightable (with my three common names, I’ve looked into it), so there can’t be an infringement “on a celebrity.” Even if one could somehow infringe on a celebrity or copyright their name, spoofs are fair use, touché. And yes, Hilton’s “profane” attack is actually protected under the law, the very first one on the list of amendments to the US Constitution—but I’m no constitutional lawyer.

That silliness aside, the good point is in the middle of that statement, which is that Hilton’s entire gig is built upon fair use of other people’s stuff, hence all the penises drawn on celebrity photos he didn’t actually take. So it’s just a little bit (a tad) ironic Hilton is attacking his own strategy for achieving largely undeserved fame.

In another twist, the lawyer writing the disclaimer on Hilton’s site must have attended the same law school as the NOM’s. It reads:

“All images on perezhilton.com are readily available in various places on the Internet and believed to be in public domain.”

I’m no lawyer myself, but it doesn’t take one to know that’s crap. 

Fair Use Battle Gets Weird, Kind of Stupid
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  • http://www.medlawplus.com jjray

    Jason, I think you are really getting the hang of this intellectual property stuff. Minor point, celebrity names can be trademarked, not copyright. I think Sintra is an example of a trademarked celebrity name. Agree wholeheartedly with your point on Perez Hilton. The dude is the napster of using celebrity images and clips. And now he wants to enforce intellectual property laws?

    • Jason Lee Miller

      Thanks jjray. Interesting point about trademarking names. (I meant trademark when I typed copyright, btw, oops). I asked a trademark lawyer I know about that and she told me names couldn’t be trademarked. Of course, I don’t know if she’s a good trademark lawyer. :-)

  • http://www.joshrimer.com Josh

    As far as I know, there’s actually a pretty big difference with fair use between photos and videos. YouTube partners for example are allowed to use photos of celebrities in their videos as often as they like, but can not use any video footage whatsoever that they don’t own the full copyright to.

    So, in Perez’s case, I do believe he is within his rights to post photos of celebrities and draw on them, but he would not be able to use some video footage from a TV show, movie, or news report and do the same. That’s why he can do what he does and feels the NOM were infringing on his rights – if they just used a photo of Perez and wrote on it, that would be fine. But they used his video, and that’s different.

  • http://www.idols-of-asia.blogspot.com/ rob

    the critical thing about fair use is that you can use something which is someone else’s copyright – provided you are not doing it to make money.

    Putting up a pic on your blog is different from a company using a pic they don’t own in an advertising campaign.

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