USDC N.D. California, July 25, 2008

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The district court granted defendants’ motion for judgment on the pleadings in this copyright infringement and racketeering suit brought by radio talk show host Michael Savage.

The plaintiff strongly criticized the defendants’ organizations and Muslims in one of his two-hour radio shows. The defendants posted audio excerpts from the show (totaling four minutes and thirteen seconds) on their web site, along with their comments and objections to the plaintiff’s statements, and a link to a fundraising page.

The plaintiff claimed that the defendants infringed his copyright in the radio show and that their use of the audio excerpts from his show were part of a fundraising plan used to finance terrorists in violation of federal racketeering statutes.

Regarding the copyright infringement claim, the court applied the four-factor fair use analysis and found that the defendants’ use of the excerpts was a fair use. The first factor – the purpose and character of the use - weighed in favor of the defendants because they used the plaintiff’s work as part of their political commentary; the court said the fair use doctrine protects those engaged in political commentary, even those who are also engaged in fundraising. The court rejected the plaintiff’s argument that the defendants’ motive for using the copyrighted work would weigh against a finding of fair use; the court said the fair use analysis examines the manner in which a copyrighted work is used, not the motivation behind such use.

Regarding the nature of the copyrighted work, the court said a call-in radio talk show seems to be more informational than creative and thus less deserving of copyright protection, but it adopted the plaintiff’s position that the show is a creative work for purposes of the motion.

The third factor – the amount of the copyrighted work that was used by the defendants – weighed in favor of fair use. The court rejected the plaintiff’s argument that the 4 minute thirteen seconds of audio excerpts should be compared to a segment of the show, rather than the entire two-hour show, because the plaintiff had registered the copyright in the show as a single work. Even if the amount used was compared to each segment of the show, the court said the amount used was reasonable because it allowed the listeners of the audio clips to confirm the authenticity of the plaintiff’s statements and to hear the plaintiff’s tone and manner in which he made the statements.

Regarding the fourth factor – the effect of the defendants’ use on the market for the copyrighted work – the court said the plaintiff failed to allege any damage to the market for his work (the plaintiff did not mention any plans for selling or licensing the work) and the court rejected the plaintiff’s argument that the defendants’ use would negatively impact future ad revenues because the fair use analysis only applies to the effect on the market for the original work, not future unrelated works. The court also stated that the defendants’ use of the work serves a different function and that the defendants’ use therefore “cannot supercede the original as a market substitute.’’

The court held that the plaintiff’s RICO claims failed in several respects. First, the court noted that the First Amendment is implicated because the plaintiff’s RICO claims were aimed at the defendants’ speech. The court held that the Noerr-Pennington doctrine, which allows an individual to petition the government or the courts, protected the defendants from the plaintiff’s racketeering claim and that the plaintiff would have to show that the defendants’ statements were made with actual malice. The court also held that the plaintiff lacked standing and failed to allege an injury as required by federal RICO statutes