N.D. Cal. Savages Savage
Judge Ilston of the Northern District of California held on Friday that the Council on American-Islamic Relations’ use of a four-minute clip of Michael Savage’s radio show in order to criticize the views espoused in that clip was fair use. This is an unremarkable result: CAIR used the material for purposes of criticism, a core fair use.
What is somewhat more remarkable is the procedural posture: Judge Ilston made the fair use determination on CAIR’s Rule 12(c) motion for judgment on the pleadings. Like Judge Pregerson’s opinion last year in Burnett v. Twentieth Century Fox, 2007 WL 1662343 (C.D. Cal. June 4, 2007), Judge Ilston found the fair use defense to be clear from the face of the pleadings, without any development of the factual record through discovery.
This latest example of a court finding fair use to be ’self-evident’ bodes well for the plaintiff in Lenz v. Universal, in which Ms. Lenz argues that her 29-second video of her baby dancing to a Prince song was self-evident fair use, rendering Universal’s takedown notice improper.
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