Case3:07-cv-06076-SI Document38 Filed07/25/08 Page1 of 21
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`No. C 07-6076 SI
`ORDER GRANTING DEFENDANTS’
`MOTION FOR JUDGMENT ON THE
`PLEADINGS
`
`MICHAEL SAVAGE,
`Plaintiff,
`
` v.
`COUNCIL ON AMERICAN-ISLAMIC
`RELATIONS, INC., COUNCIL ON
`AMERICAN-ISLAMIC RELATIONS ACTION
`NETWORK, INC., COUNCIL ON
`AMERICAN-ISLAMIC RELATIONS OF
`SANTA CLARA, INC., and DOES 3-100,
`Defendants.
` /
`
`Defendants’ Rule 12(c) motion for judgment on the pleadings came on for oral argument on
`April 7, 2008. Having considered the arguments of the parties and papers submitted, the Court hereby
`GRANTS defendants’ motion on both causes of action.
`
`BACKGROUND
`Plaintiff Michael Weiner, using the name “Michael Savage,” is the host and star of “The Savage
`Nation,” a nationally-syndicated radio program that plaintiff alleges “reaches eight million listeners per
`week.” Second Amended Complaint (“SAC”) at ¶¶ 1, 2. Plaintiff filed the instant suit in response to
`the use by defendants the Council1 on American-Islamic Relations, Inc., the Council on American-
`Islamic Relations Action Network, Inc., and the Council on American-Islamic Relations of Santa Clara,
`Inc. (collectively “CAIR”), of a four-minute audio clip taken from plaintiff’s radio program. Plaintiff
`
`1This defendant was referred to as the “Counsel on American-Islamic Relations, Inc.” in the
`caption of the complaints. The parties apparently agree that the correct defendant is the “Council on
`American-Islamic Relations, Inc.” and the Court adopts this language.
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`Case3:07-cv-06076-SI Document38 Filed07/25/08 Page2 of 21
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`alleges that defendants, in posting the audio clip on their website, engaged in copyright infringement
`in an effort to raise money for terrorism and further a terrorist conspiracy. Plaintiff alleges that
`defendants are connected to terrorist organizations operating abroad and that defendants are responsible
`in some way for the September 11, 2001 terrorist attacks on the United States.
`The 9/11 attacks were a staggering national tragedy. But it is important to note that this case is
`not about 9/11 or efforts by the United States to prevent future terrorist activities. It is, rather, a dispute
`about the ideas expressed in a four-minute audio clip and the protections of the First Amendment,
`protections upon which plaintiff relies for his livelihood and the airing of his radio program.
`The audio clip at issue in this dispute was taken from the two-hour long Savage Nation program
`that aired on October 29, 2007, in which it is undisputed that plaintiff said the following, among other
`things, about Muslims and about CAIR:
`(1) “I don’t want to hear one more word about Islam. Take your religion and shove it up your
`behind.”
`(2) “They need deportation . . . .You can take [CAIR] and throw them out of my country.”
`(3) “You can take your due process and shove it . . . .”
`(4) “[I]ts Muslims screaming for the blood of Christians or Jews or anyone they hate.”
`(5) “[Islam], a religion that teaches convert or kill, a religion that says oppress women, kill
`homosexuals . . . .”
`(6) “The Quran is a document of slavery and chattel.”
`Ahmed Decl. at ex. A. In response to plaintiff’s remarks, defendants posted on their website,
`www.cair.com, a detailed criticism of plaintiff’s anti-Muslim and anti-CAIR commentary, entitled
`“National Radio Host Goes On Anti-Muslim Tirade.” The web page explained defendants’ objections
`to plaintiff’s remarks, see id., and included an audio file containing the above-quoted excerpts from the
`show that, when played in its entirety, runs for four minutes and thirteen seconds, SAC at ¶ 24. Plaintiff
`alleges that defendants’ unauthorized use of his remarks was taken out of context and that defendants’
`“misportrayals” destroyed the value of his material and led to a loss of advertising revenue. SAC at ¶¶
`at 34-35; see also Ahmed Decl. at exs. A & B.
`Plaintiff filed his original complaint on December 3, 2007. He has amended it twice since then,
`once as of right on December 25, 2007, and a second time by stipulation of the parties on February 14,
`2008. The Second Amended Complaint alleges copyright infringement and civil RICO claims against
`defendants. In a lengthy and polemical complaint, plaintiff alleges that CAIR misappropriated in excess
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`Case3:07-cv-06076-SI Document38 Filed07/25/08 Page3 of 21
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`of four minutes of plaintiff’s show for fund-raising purposes and that the segment was used in a manner
`designed to cause harm to the value of the copyrighted material. He alleges that this misappropriation
`was part of a criminal and political agenda to silence those speaking out against various facets of Islam.
`Plaintiff alleges that defendants’ furtherance of foreign terrorist interests is part of a larger conspiracy
`of criminal activity that gives rise to his civil RICO claims. Generally, he alleges that defendants work
`to raise funds for terrorist groups, aim to silence voices that oppose their views, and have board
`members who are tied to alleged terrorist organizations. He further alleges that defendants are the
`domestic branch of a foreign terror organization posing as a civil rights organization.
`Further reference to relevant background facts and allegations is set forth below in the body of
`the discussion.
`
`LEGAL STANDARD
`“After the pleadings are closed but within such time as not to delay the trial, any party may move
`for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the pleadings is proper when the
`moving party clearly establishes on the face of the pleadings that no material issue of fact remains to
`be resolved and that it is entitled to judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard
`Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). “For purposes of the motion, the allegations
`of the non-moving party must be accepted as true, while the allegations of the moving party which have
`been denied are assumed to be false.” Id.
`Although Rule 12(c) neither specifically authorizes nor prohibits motions for judgment on the
`pleadings “directed to less than the entire complaint or answer . . . [i]t is the practice of many judges to
`permit ‘partial’ judgment on the pleadings (e.g. on the first claim for relief, or the third affirmative
`defense).” See William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil
`Procedure Before Trial, ¶ 9:340 (2001). “[C]ourts have discretion to grant a Rule 12(c) motion with
`leave to amend.” Id. ¶ 9:341.
`When considering a motion on the pleadings, courts may consider exhibits submitted or
`referenced in the complaint and matters that may be judicially noticed pursuant to Federal Rule of
`Evidence 201. See, e.g., Burnett v. Twentieth Century Fox Film Corp., 491 F. Supp. 2d 962, 966 (C.D.
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`Cal. 2007). Indeed, “documents specifically referred to in a complaint, though not physically attached
`to the pleading, may be considered where authenticity is unquestioned.” Id. (citing Daly v. Viacom, Inc.,
`238 F. Supp. 2d 1118, 1121-22 (N.D. Cal. 2002) (considering television program referenced in, but not
`attached to, complaint).
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`DISCUSSION
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`I.
`
`Copyright Act claim
`Plaintiff alleges copyright infringement by defendants because they “misappropriated copyright
`protected material from [plaintiff] and made this material available on [their] website.” SAC at ¶ 27.
`A prima facie case of copyright infringement exists because there is no dispute as to plaintiff’s
`ownership of the copyrighted material and defendants’ copying of this material. Hustler Magazine, Inc.
`v. Moral Majority Inc., 796 F.2d 1148, 1151 (9th Cir. 1986). However, defendants argue that plaintiff’s
`claim is barred as a matter of law by the doctrine of fair use, which “permits [and requires] courts to
`avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity
`which that law is designed to foster.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994)
`(internal quotation marks omitted) (alteration in original). Section 107 of the Copyright Act provides
`that:
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`[T]he 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.
`Two cases are particularly relevant to evaluating fair use in the instant case. The Hustler case
`involved a fundraising appeal sent by Moral Majority to thousands of donors. The mailer included a
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`complete copy of a parody published in Hustler Magazine, used by Moral Majority without Hustler’s
`permission. See Hustler Magazine, 796 F.2d at 1150. Although the use was tied to an incontroverted
`fundraising and political purpose, the Ninth Circuit held that Hustler’s copyright infringement claim was
`barred by the doctrine of fair use. Id. at 1152-53, 1156. It found that Moral Majority had not sold the
`copyrighted work as its own, but had used it for political comment about the plaintiff and to rebut the
`plaintiff’s personal attack. Id. at 1153. The court reasoned that individual and institutional defendants
`may copy such portions of the work as is necessary to allow comprehensible comment in rebutting
`derogatory information. Id. (citing § 107 legislative history, H.R. Rep. No. 94-1474, at 73 (1976),
`reprinted in 1976 U.S.C.C.A.N. 5659, 5687). The Ninth Circuit concluded that Moral Majority’s
`copying of the entire parody was reasonably necessary to provide such comment, and held that the
`public interest in allowing individuals and institutions a defense against derogatory attacks rebuts the
`presumption of unfairness that otherwise might attach when a use is connected to a commercial purpose.
`Id.
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`The second case of particular relevance here is Campbell v. Acuff-Rose Music, Inc., in which
`the Supreme Court considered whether fair use should apply to a situation in which a rap group created
`a “shocking” parody of the song “Oh, Pretty Woman.” Campbell, 510 U.S. at 572-73. The Supreme
`Court held that the defendant’s commercial parody, which copied portions of the plaintiff’s copyrighted
`song, constituted fair use. In reaching the decision, it considered whether the new work was
`“transformative,” embodying a different purpose, meaning, or message from the original work. Id. at
`579. The court recognized transformative works as being “at the heart of the fair use doctrine,” such
`that the commercial purpose of the use was given less weight. Id. The defendant’s parody was clearly
`intended to ridicule the original, and the court found it irrelevant to evaluate whether the parody was
`in bad taste. Id. at 582. The court further reasoned that the commercial character of a use does not bar
`a finding of fairness because many permissible uses, such as comment, criticism, news reporting, and
`teaching, are done for profit. Id. at 584.
`The doctrine of fair use is evaluated as a “mixed question of law and fact.” Harper & Row
`Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985). However, “[i]f there are no genuine issues
`of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier
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`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, 796 F.2d at 1151; 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; the court is to make fair use judgments, which “are legal in nature”);
`Leadsinger, Inc., v. BMG Music Pub., 512 F.3d 522, 530 (9th Cir. 2008).
`All fair use factors must be explored and weighed together, not in isolation, while considering
`the purposes of the Copyright Act. Campbell, 510 U.S. at 578. Morever, the scope of fair use is broader
`when the information relayed involves issues of concern to the public. Harper & Row Publishers, 471
`U.S. at 555-56. The Court evaluates the parties’ arguments on each of these four fair use factors and
`weighs the factors below.
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`The purpose and character of the use
` A.
`Defendants argue that the first factor favors the application of the fair use doctrine because there
`is no dispute that the purpose and character of their use of the copyrighted materials was a form of
`public criticism and commentary protected by the Copyright Act. Plaintiff argues that the fair use
`defense is inapplicable to defendants’ usage of, and comment on, segments of the copyrighted audio
`work because defendants’ “infringement was not done for genuine criticism or comment,” but instead
`misrepresented plaintiff’s views with the intention to raise funds for their own political purposes as “a
`foreign agent for international terror” under the guise of a non-profit, civil rights group. Plaintiff’s
`Opposition at 5-7; see SAC at ¶¶ 24, 28-30, 32. Plaintiff asserts that these alleged motives behind the
`usage and comment are fatal to defendants’ fair use defense because fair use presupposes good faith and
`fair dealing.
`The first fair use factor examines the “purpose and character of the use,” considering whether
`the character of the use is criticism and commentary and weighing, for instance, the “commercial or
`nonprofit purpose of the use.” See 17 U.S.C. § 107(1). The use of copyrighted work for a commercial
`purpose is presumptively unfair. Hustler Magazine, 796 F.2d at 1152. However, “[s]ection 107
`expressly permits fair use for the purposes of criticism and commentary.” Id. at 1153. In addition, the
`Supreme Court has recognized that commentary and criticism “traditionally have had a claim to fair use
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`protection.” Campbell, 510 U.S. at 583. Therefore, “[e]ven assuming that the use had a purely
`commercial purpose, the presumption of unfairness can be rebutted by the characteristics of the use.”
`Hustler Magazine, 796 F.2d at 1152-53.
`Plaintiff tries to conflate “motive” with the purpose and character of the use, which is not
`permitted by the case law. Rather, even assuming the truth of plaintiff’s allegations about motive, it is
`the manner of use, not the motivation behind it, which must be analyzed: “what use was made,” rather
`than “who is the user.” Defendants’ Reply at 3.
`Plaintiff places primary reliance on the Supreme Court’s reasoning in Harper and Row, but it
`does not go so far as plaintiff contends. The Harper and Row court recognized that fair use presupposes
`good faith and fair dealing in the manner in which the copyrighted work was obtained by the defendant.
`Harper & Row Publishers, 471 U.S. at 562-63. Accordingly, in evaluating the “character of the use”
`aspect of the first factor, the court found relevant “the propriety of the defendant’s conduct.” Id. The
`court found that by “exploiting a purloined manuscript” before the plaintiff had a chance to publish it,
`the defendants had arrogated to themselves the valuable commercial right of first publication, which
`weighed against a finding of fair use. Id. The Supreme Court’s good faith inquiry concerned how the
`original work was obtained, not the motive behind the use. See id. Here, plaintiff does not claim that
`the audio segments were not obtained in good faith, but alleges only that defendants’ motives are
`improper. In fact, plaintiff was the first to publicly broadcast the excerpts used by defendants, making
`the work readily accessible to anyone. Unlike Harper, there can be no claim of theft in obtaining the
`excerpts or destroying plaintiff’s right of first publication here. Defendants obtained the audio segments
`just as the general public would, and plaintiff’s arguments as to defendants’ alleged motives are not
`relevant to evaluating this factor.
`Morever, Hustler held as fair use the defendants’ distributing of plaintiff’s entire parody, despite
`the political purposes served by the defendants’ use. Hustler Magazine, 796 F.2d at 1153. Protection
`under the doctrine of fair use extends to those with a political purpose, even those engaged in
`fundraising activities. Thus plaintiff’s allegation that defendants placed the link to the plaintiff’s audio
`excerpt near a donate button on defendants’ web page does not vitiate fair use, where defendants’ use
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`of the audio excerpt called attention to plaintiff’s statements to raise funds from defendants’ supporters,
`by providing criticism and comment. Hustler Magazine, 796 F.2d at 1152-3, 1156; Campbell, 510 U.S.
`at 571-72, 584; see also Lennon v. Premise Media Corp., ___ F. Supp. 2d ___, 2008 WL 2262631, at
`*8 (S.D.N.Y. June 2, 2008) (balance of factors clearly favors finding of fair use where defendants used
`an excerpt from the John Lennon song “Imagine” in order to critique the lyrics contained in that
`excerpt).
` Plaintiff has made no allegation that defendants used plaintiff’s work for anything other than
`criticism of or comment on plaintiff’s views; rather, the complaint affirmatively asserts that the purpose
`and character of defendants’ use of the limited excerpts from the radio show was to criticize publicly
`the anti-Muslim message of those excerpts. See SAC at ¶¶ 26, 28, 32, 42. To comment on plaintiff’s
`statements without reference or citation to them would not only render defendants’ criticism less
`reliable, but be unfair to plaintiff. Further, it was not unreasonable for defendants 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 plaintiff made the statements.
`For all of these reasons, the Court finds that defendants used plaintiff’s material in order to
`criticize and comment on plaintiff’s statements and views. These facts are uncontested, and the Court
`finds that this factor weighs heavily in favor of defendants.
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`The nature of the copyrighted work
`B.
`The work at issue is part of a radio talk show about public affairs. Defendants argue that, as a
`result, the law affords it less copyright protection, because the content of the work is more informational
`than creative. Plaintiff opposes by pointing to his allegations that his show is a performance with “value
`beyond the words and ideas conveyed,” Plaintiff’s Opposition at 7-8, which he compares to “live theater
`. . . or other genres where a performer combines social commentary with powerful performance,” SAC
`at ¶¶ 3-4.
`The second fair use factor considers the nature of the copyrighted work at issue. 17 U.S.C. §
`107(2). In evaluating this factor, courts have considered creative works to be “closer to the core of
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`intended copyright protection” than “informational” works. Campbell, 510 U.S. at 586; Hustler
`Magazine, 796 F.2d at 1153-54. In Hustler, the Ninth Circuit considered “whether the work is
`imaginative and original, or whether it represented a substantial investment of time and labor made in
`anticipation of financial return.” Hustler Magazine, 796 F.2d at 1154. Because the audio excerpts come
`from a call-in radio talk show, the original work at issue appears to be more informational than creative.
`It is reasonable to believe that plaintiff did not anticipate a future sale of, or future market for, the
`content arising from his comments made on a call-in show. Further, it would be difficult to reasonably
`construe plaintiff’s on-air comments regarding Muslims, Islam, and CAIR as fiction or fantasy, which
`copyright law distinguishes from factual works. Harper & Row Publishers, 471 U.S. at 563 (“The law
`generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.”).
`However, at this stage of the litigation, the Court must assume the truth of plaintiff’s allegation that his
`work is a creative performance. Therefore, the Court finds that this factor weighs slightly in plaintiff’s
`favor.
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`The amount and substantiality of the portion used
`C.
`Defendants argue that the amount and substantiality factor favors the fair use defense because,
`as plaintiff alleges, defendants used a portion “in excess of four minutes” of the two hour radio talk
`show. However, plaintiff argues that “the relationship of the material used by defendants to the totality
`of the performance cannot be decided on the pleadings” because the copied portion of the two- hour
`show constitutes a distinct work like a separate song on a CD and, therefore, there is a fact issue as to
`whether the amount copied in relation to the whole is unreasonable. Plaintiff’s Opposition at 8.
`This factor evaluates “the amount and substantiality of the portion used in relation to the
`copyright as a whole.” 17 U.S.C. § 107(3). This factor looks to the quantity and significance of the
`material used to determine whether the use is reasonably necessary to accomplish the purpose of the
`defendant’s work and whether it supersedes or constitutes the heart of the original work. Campbell, 510
`U.S. at 586-87. In addition, the Supreme Court has considered the persuasiveness of the critic’s
`justification for the copying based on the first fair use factor, because the Court recognizes that the
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`extent of permissible copying varies with the purpose and character of the use. Id. Even substantial
`quotations may constitute fair use in commenting on a published work. Harper & Row Publishers, 471
`U.S. at 564. For example, “an individual in rebutting a copyrighted work containing derogatory
`information about himself may copy such parts of the work as are necessary to permit understandable
`comment.” Hustler Magazine, 796 F.2d at 1153 (held as fair use defendants’ copying of the entire
`parody to rebut the parody’s derogatory message about a defendant because the use was necessary to
`provide understandable comment).
`Plaintiff argues that the amount and substantiality of the audio excerpt constitutes the heart of
`the original work because it is substantial in relation to incremental segments of the program, which by
`themselves should constitute separate original works. It should first be noted that this claim is
`inconsistent with various allegations in the complaint, such as the assertion that CAIR’s “repackaging
`damaged the work and damaged the public image of the work because it was taken out of context . . .
`of ‘The Savage Nation’ . . . ,” SAC at ¶ 31, and that defendants did not use the excerpt in “the context
`of the statement and it is not consistent with the content of the programming as a whole,” id. at ¶ 32.
`In any event, however, defendants persuasively argue that plaintiff is barred from asserting that the
`audio excerpts should be compared to incremental portions as opposed to the entire two-hour show
`because plaintiff had registered the October 29, 2007 episode as a whole work. Defendants’ Reply at
`6 n.6 (citing Melville and Nimmer, Nimmer on Copyright § 13.05[A][3]); see Copyright Registration
`Number SR0000610214. For these reasons, plaintiff’s admission that the excerpt is roughly four
`minutes out of a two hour show strongly suggests that the amount used was small in relation to the entire
`talk show program on October 29, 2007.
`Further, even assuming as true plaintiff’s allegation that incremental portions or segments of the
`show constitute separate copyrightable works, and accepting plaintiff’s argument that the audio excerpts
`used should be compared to these portions in analyzing the amount and substantiality factor, plaintiff’s
`contention that this factor should weigh in his favor fails as a matter of law. As discussed in the Court’s
`analysis of the first fair use factor, defendants used the audio excerpts to comment on and rebut
`derogatory statements regarding their organization and their religious affiliations, and the amount used
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`in reference to plaintiff’s statements was reasonably necessary to convey the extent of plaintiff’s
`comments. As a result, regardless of whether the entire October 29, 2007 program or segments of that
`program constitute the entire original work for analysis under this factor, the extent of defendants’
`copying of the audio excerpts falls within the fair use doctrine. Hustler Magazine, 796 F.2d at 1153.
`Therefore, the Court finds that the amount and substantiality of material used in comparison to the
`original work favors the application of fair use under the third factor.
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`The effect of the use upon the potential market for or value of the copyrighted work
`D.
`The fourth factor considers “the effect of the use upon the potential market for or value of the
`copyrighted work.” 17 U.S.C. § 107(4). Evaluation of this factor considers both the extent of the
`market harm caused by the alleged infringer’s conduct and the adverse impact on the potential market
`for the original if this conduct were unrestricted. Campbell, 510 U.S. at 590; Harper & Row
`Publishers, 471 U.S. at 568. The Ninth Circuit has provided that “in determining 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). In addition, the Supreme Court has held that critique or
`commentary of the original work, such as a parody, 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. Campbell, 510 U.S. at 591-92. The role of the courts is to distinguish between
`criticism that decreases demand and copyright infringement that essentially eliminates it by market
`substitution. Id. at 592. Furthermore, the Ninth Circuit has noted that “[a] use that has no effect upon
`the market for, and value of, the work need not be prohibited in order to protect the author’s incentive
`to create.” Hustler Magazine, 796 F.2d at 1155 (internal quotation marks omitted) (alteration in
`original). Therefore, the scope of fair use includes “copying by others which does not materially impair
`the marketability of the work which is copied.” Id. This last factor is the most important factor of the
`fair use defense. Id.
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`Defendants argue that their usage did not damage the market value of the original work. The
`complaint merely asserts, without more, that defendants’ usage “damaged the work and damaged the
`public image of the work.” SAC at ¶ 31. However, plaintiff fails to allege or suggest an impact on the
`actual or potential sale, marketability, or demand for the original, copyrighted work. There is no
`suggestion that plaintiff 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.2 Plaintiff instead alleges that defendants caused him
`financial loss in advertising revenue. Assuming the truth of this allegation, it relates only to the
`economic impact on future shows, and has no impact on the market for the original, copyrighted show
`on October 29, 2007. Because this factor limits the evaluation of market impact to the original work
`at issue, not other works by the creator, the loss of advertising revenue for future shows, unrelated to
`the original work, does not give rise to a legal cognizable infringement claim. Campbell, 510 U.S. at
`590. Allegations of this sort have been squarely rejected by the Supreme Court. Id. at 591-92.
`Plaintiff alleges that defendants “destroyed [the] value of the copyright material and performance
`as a whole, to the extent that people gave credence to the CAIR repackaging of the content.” SAC at
`¶ 35 (emphasis added). Thus, plaintiff admits that the effect of defendants’ usage is limited to the public
`criticism and condemnation of the ideas within the original work, not market damage in the economic
`sense. For example, the posting and criticizing of the audio segment on defendants’ website does not
`promote fundraising to the detriment of plaintiff’s potential revenue on the original work. The audience
`that might donate and listen to the audio segment on defendants’ website is separate from the audience
`that plaintiff possibly could stand to profit from in using his website to sell the audio content at issue.
`Likewise, plaintiff’s allegation that defendants repackaged the original, misportraying its meaning and
`message, creates a presumption that the work is transformative. See Campbell, 510 U.S. at 579, 591-92
`(reasoning that a new work that has a different purpose, meaning, or message than the original work is
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`2 Any potential claims on the market impact of derivative works are barred as a matter of law
`because “there is no protectible derivative market for criticism” and impairing such a market by the
`effectiveness of critical commentary is not relevant under copyright law. Campbell, 510 U.S. at 592-93.
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`transformative). Because the use of the audio excerpts serves a different function, it cannot supercede
`the original as a market substitute. See id. at 591-92. As a result, the sum of plaintiff’s allegations and
`evidence demonstrate that there will be no actual or potential market impact on the original work, and
`the Court finds the fourth factor strongly favors defendants.
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`Conclusion re: copyright claims
`E.
`Assuming all of plaintiff’s allegations are true, the Court finds that the majority of the four fair
`use factors, including the most important factors, weigh in favor of defendants. Accordingl