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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.