Perez Hilton, Michelle Malkin, and the "Fair Use" Exception to Copyright Law:
What Are the Rules When Bloggers Use Video Excerpts and Photographs Without Permission?

By JULIE HILDEN
Wednesday, May. 16, 2007

Recently, two prominent bloggers -- political pundit Michelle Malkin and celebrity gossip purveyor Perez Hilton (not to be confused with "Paris" Hilton) -- have been involved in battles over the scope of the exception for "fair use" of copyrighted material.

At issue for Malkin was a video podcast (video downloaded from the Internet) in which she criticized the rap-music artist Akon, using excerpts from his music videos and from a performance in which he performed a sexually explicit dance with an underage girl. Pursuant to the Digital Millennium Copyright Act (DMCA), UMG, the corporation that represents Akon, gave YouTube notice that it believed that postings of the podcast violated its copyrights, and thus must be de-posted. But Malkin -- represented by the Electronic Frontier Foundation -- strongly disagreed, claiming "fair use," and arguing that UMG and Akon's true motive was not to protect creative work, but to avoid harsh criticism. Yesterday, UMG backed off by rescinding its takedown request. After YouTube got the word, it allowed the podcast to be posted and viewed.

Hilton, meanwhile, has been sued by several photograph agencies, including the prominent X17, for posting copies of their photographs on his site. His attorney, Bryan Freedman, claims, however, that because Hilton writes words on, and/or embellishes, the photographs using white pen before he posts them, his use of the photographs is "satire," and thus "fair use."

In this column, I'll explain why Malkin prevailed, and Hilton probably will not.

The Traditional "Fair Use" Factors

In assessing a "fair use" claim under the Copyright Act, courts weigh four factors:

First, there's the purpose and character of how copyrighted material is used. (Use of copyrighted material or work is commonly referred to as "a use" for short). A use is more likely to count as "fair use" if it is non-commercial and/or if it is transformative -- turning the original into, in effect, a different work. Criticism -- or any type of commentary upon the work-- is a prime example of a transformative use, because it transforms the work by including it as evidence in support of an argument expressed in another piece of work in which it is included.

Second, there's the nature of the copyrighted work. Creative, original works receive a higher level of protection than derivative works -- that is, works that are "derived" from other material -- or fact-heavy works. As-yet unpublished works receive a higher level of protection than already-published works.

Third, there's the amount and substantiality of the portion of the work used, as compared to the copyrighted work as a whole. Using a single line from a book is less problematic than using a large chunk of its text. And cherry-picking the good parts (say, a crucial plot twist or revelation) is more problematic than, say, choosing a sample paragraph at random.

Finally, there's the effect of the use upon the potential market for the copyrighted work. The Supreme Court--in its 1985 decision in Harper & Row Publishers Inc. v. Nation Enterprises -- emphasized that what matters here is market substitution -- not other harms to the market. Thus, if a satire kills the market for a novel by making the novel look ridiculous, that's tough luck for the novelist. But if a novel competes with a prior novel by stealing from it, the thief cannot cloak his theft in the mantle of "fair use."

This fourth and last factor -- market substitution effect -- is the most important. And rightly so: The point of copyright law is to ensure that creators of works recoup profits from their efforts. When a competitor steals from a prior work in order to steal part of its audience and thus its profits, he strikes at the heart of the reason we protect copyrights in the first place.

How the "Fair Use" Factors Likely Played Out for UMG in the Malkin Case

Let's look at these four factors in the context of the Michelle Malkin case, to understand why UMG likely backed off:

First, there was the factor of the purpose and character of the use: Because Malkin was criticizing Akon's work, her use of the Akon video was a clear case of transformative use. Moreover, Malkin received no revenue directly from the YouTube postings of her podcast -- making this a case of noncommercial use. Score one for Malkin.

Second, there was the factor of the nature of the original work: The videos are creative works. Score one for UMG.

Third, there was the factor of the amount and substantiality of the portion used: Music videos are brief; thus, any portion taken constitutes a fairly large and substantial part of the video. Score two for UMG.

Fourth, and most important, there's the factor of the market substitution effect. Granted, Malkin's podcast may hurt the market for the Akon video if her listeners end up agreeing with her criticism. But what truly matters is that it's extremely unlikely that any Akon fan will opt to watch only Malkin's podcast in lieu of (not in addition to) watching Akon's music videos or concert video themselves. A podcast criticizing a video is no substitute for the video itself, in the market; it doesn't provide watchers with anything like the same experience, and thus doesn't compete with the video itself. Score two for Malkin.

It might appear that Malkin and UMG are tied, 2-2, at this point. But remember, that fourth factor is the most important -- so Malkin clearly wins.

That is as it should be: The "fair use" factors are animated and informed by First Amendment concerns, and certainly, the kind of criticism Malkin is providing is strongly protected by the First Amendment. No wonder, then, that UMG backed off, and dropped its challenge.

How the "Fair Use" Factors are Likely to Play Out in the Hilton Case

That brings us to the much shakier "fair use" claim asserted by Perez Hilton. Again, going through the "fair use" factors is key:

First, there's the factor of the purpose and character of Hilton's use of photograph agency X17's works. Hilton's site accepts advertising; indeed, its right column is all ads, and it solicits more ads. Clearly, Hilton is making commercial use of the photos.

Is the use transformative, however? Yes. But a court would doubtless find, say, Malkin's use more transformative than Hilton's. That's because whereas Malkin is folding her excerpts of Akon's work into a work of criticism with a larger point, Hilton is simply reprinting photographs and scrawling a few words -- often slurs or obscenities -- on them, or putting white dots on celebrities' mouths to represent cocaine, or on their crotches to represent semen. For some courts, the fact that Hilton is providing at least some commentary might be enough. First Amendment doctrine strongly favors government speech regulations that are not content-based precisely because courts are uneasy about getting into the business of figuring out whose speech is more worthy; the point of free speech is that all kinds of speech are protected, regardless of content. Thus, the Supreme Court made clear in Acuff-Rose v. Campbell that a parody can be crude and juvenile and still count as "fair use." Crude as it may be, I believe Hilton's work ought to qualify as satire; it tries to bring the high and mighty down to size, and to topple pedestals.

But there's a wrinkle: One could argue that Hilton isn't appropriating photos to satirize the photos themselves, but rather to satirize the celebrities who appear in them. And what "fair use" doctrine permits is appropriating elements of the target of the satire or parody -- not appropriating an unrelated work. To illustrate her critique of Akon, Malkin needed to show his video in particular. But to satirize, say, Lindsay Lohan, Hilton arguably could use his own photograph of Lohan -- not another photographer's. Since these celebrities are so visible, we're not talking about a one-of-a-kind work here, such as, say, a photo of Elvis in his coffin, or the footage showing Kate Moss doing cocaine.

The upshot: The first factor probably slightly favors Hilton, but not if a court takes the satire's target to be the celebrities instead of the photos. If Hilton's attorney is smart, he or she will argue that the target is our celebrity-obsessed culture as embodied by paparazzi photos.

Second, there's the factor of the nature of the copyrighted work. Though X17's photographers' status as paparazzi won't impress the court, the fact that they take photos for a living, and are skilled at getting good ones, will. Also, the court may feel uncomfortable deeming some photos art, and refusing that designation for others; again, this violates the First Amendment ideal of content neutrality. So, score two for the photo agencies.

Third, there's the factor of the amount and substantiality of the portion of the work that is used. Hilton uses the entire photo. Score three for the photo agencies. Perhaps Hilton's lawyer may try to redefine the relevant work as the agency's whole portfolio of photos of a given celebrity, but that's a losing battle.

Fourth -- and again, most importantly -- there's the factor of the market substitution effect. Here's, it's powerful. You might go to X17online.com and see a given photo -- but at PerezHilton.com, you can see it with a caption, too. Some viewers will doubtless bookmark PerezHilton, rather than X17online.com. That's a problem, as both are ad-supported. (Indeed, both in the same way; X17online.com, too has a right-side column of ads and solicits more ads on its site.)

Score three (possibly four) for the photo agencies, and one (possibly zero) for Hilton. And remember, that fourth factor -- which favors the agencies -- is the crucial one.

Advice to Perez Hilton: Join Forces with X17

My advice to Perez Hilton: Make a deal with X17 as soon as possible; it could benefit you both. If X17 wins its suit, it could both wipe out your bank account and close you down. But if you two merged, it might be the beginning of a beautiful friendship, which would lead to a lot more revenue in the future.

Putting X17's logo on your photos would still leave space for your trademark white markups. You can offer gossip to which X17 may not have access; a very popular podium (People magazine reports that you get 2 million page views a day); and the stature and fame that has caused you to be named one of Out magazine's "50 Most Powerful Gay Men and Women" and one of PC World's "50 Most Important People on the Web."

Michelle Malkin and Akon's interests were inherently at loggerheads, but your interests and X17's could be aligned. This is a lawsuit that should settle not with money, but with a merger.


Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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