For the last several months or so, I’ve been following the intellectually-impaired grifter antics over at The Sarah Palin Channel — Palin’s recently launched subscription service, which also happens to feature free-to-the-public videos posted on the main page. In the process of covering the Sarah Palin beat, it’s been necessary to excerpt sections of her videos and to subsequently embed the “takeouts” (Antonin Scalia’s word) on The Daily Banter in the context of reviewing her illiterate blather.
One of the clips in particular went viral. You might recall the video in which Palin lapsed into some sort of aphasia or stupor and began to babble about Elizabeth Warren, fast food and Purgatory. To date, no one’s been able to adequately decipher what she was saying. Accordingly, my excerpted clip and the accompanying article spread throughout the blogosphere and, as of late September, was pushing toward 700,000 views.
However, the view count was halted and the video was disabled when Sarah Palin’s production company stumbled upon it. On September 21, I logged into my YouTube account to find the following notice:
After clicking “I Acknowledge,” I was taken to a rather humiliating traffic-school of sorts inside YouTube. Apparently whenever there’s a copyright claim against a YouTube video, the account-holder is forced to watch a Happy Tree Friends cartoon about copyright law (yes, really), and then take a quiz on the content of the cartoon. If you miss more than two questions, you have to take the quiz again. If you refuse, you’re prevented from accessing your account.
Once I plowed through the video and the quiz, not unlike a scolded child, I learned who the claimant was. Turns out it was a representative (listed by name and email in the notice I received) from a company called “TAPP TV.” Sounded familiar — a quick Google search yielded the production studio created by former NBC executive Jeff Gaspin, and former CNN president Jonathan Klein. One of their flagship projects was, of course, the Sarah Palin Channel.
The good news was that YouTube allowed me to respond to the claim — to state my case. The bad news was threefold: 1) By responding, TAPP TV would receive a copy of my personal information including my mailing address, 2) Even if YouTube reinstated the video, I could still be sued by the claimant, and 3) YouTube only allows responses that are a maximum of 200 characters. How nice. We’re supposed to respond to potentially actionable charges with, basically, a tweet. So, I crafted a counter-claim using around 200 characters.
Then, on October 1, I received two more claims from TAPP TV regarding two more Palin videos, including an excerpt from Palin’s Ice Bucket Challenge video. Now it was getting serious because if YouTube decided in favor of Palin’s people, that would’ve been three strikes and my YouTube account would’ve been removed and all of my videos would’ve been deleted. It was at this point when I contacted my friend and personal/business lawyer, Charles Bowen from The Bowen Law Group, and explained that I might be facing a rather serious legal issue against Sarah Palin’s production affiliate. Having spent the last 20-plus years or so dealing in both satire and journalism, I was aware of my rights in the matter, but I needed a legal backstop to ensure I was covered in case this escalates beyond YouTube and into the realm of cease and desist orders — or worse.
Naturally, Charles confirmed my counter-claim, noting that my use of the video clips fell nicely within a practical loophole in copyright law known as “fair use” (Copyright Act of 1976, 17 U.S.C. § 107). It’s what allows shows as diverse as The Colbert Report and Meet the Press to air video clips of other presentations on their air. It also allows movie reviewers to display clips from movies they’re reviewing, as well as print journalists to excerpt quotes from books or other articles. In a comprehensive blog post about this matter, Charles explained:
Clearly Bob Cesca’s use of material from Sarah Palin’s website was an act of political criticism and political satire. It was an effort to engage in political debate on the character of a prominent political figure. In no way did it attempt to supersede or replace Ms. Palin’s work but rather to criticize it. Mr. Cesca’s use of Ms. Palin’s content for the purpose of criticism and satire is entirely in keeping with the purpose and character described as “fair use” in the Copyright Act of 1976 and within the right to free speech guaranteed by the First Amendment.
Charles also created an extremely handy list of fair use principles for journalists and bloggers:
1) Purpose and character. Make sure your purpose is to advance knowledge or the arts, not merely to profit from another person’s work.
2) Nature of the copied work. If the work you are quoting is of national importance (like the home movie of the Kennedy assassination), you are probably safe in using it.
3) Amount and substantiality. Do not quote so much of the work that purchasing the original work would be unnecessary.
4) Effect upon the work’s value. You have full right to criticize a copyrighted work, even if it makes the original author’s work less marketable. However, your quotation cannot be such that it could serve as a substitute for the original work and thus cause the original author to lose some of his or her market.
Obviously, this was a situation in which someone (we don’t know whom, exactly) was upset because we were relentlessly criticizing Palin’s silly videos. But she’s a public figure and The Daily Banter is in the business of reviewing clips and quotes from public figures, often ripping them to smithereens. Imagine a world in which news and commentary organizations were forbidden by law from critically displaying video clips of copyrighted works. Imagine the chilling effect it would have on critical speech. In a sense, such laws would be in clear violation of the First Amendment, as Charles Bowen outlined.
Along those lines, you probably recall Palin’s rather (cough) liberal invoking of the First Amendment.
Palin on Phil Robertson:
“Free speech is an endangered species. Those “intolerants” hatin’ and taking on the Duck Dynasty patriarch for voicing his personal opinion are taking on all of us.”
Palin on Miss USA contestant Carrie Prejean:
“I respect Carrie for standing strong and staying true to herself, and for not letting those who disagree with her deny her protection under the nation’s First Amendment Rights. Our Constitution protects us all — not just those who agree with the far left.”
Palin on Dr. Laura:
“Dr. Laura: don’t retreat…reload! (Steps aside bc her 1st Amend.rights ceased 2exist thx 2activists trying 2silence’isn’t American,not fair’)”
Palin on Rush Limbaugh’s Sandra Fluke comments:
“I think the definition of hypocrisy is for Rush Limbaugh to have been called out, forced to apologize, and retract what it is that he said in exercising his First Amendment rights, and never is that — the same applied to the leftist radicals who say such horrible things about the handicapped, about women, about the defenseless.”
Palin on the Chick-Fil-A boycott:
“Well, that calling for the boycott is a real — has a chilling effect on our 1st Amendment rights. And the owner of the Chick-Fil-A business had merely voiced his personal opinion about supporting traditional definition of marriage, one boy, one girl, falling in love, getting married…I’m speaking up for him and his 1st Amendment rights and anybody else who would wish to express their not anti-gay people sentiment, but their support of traditional marriage.”
No, she doesn’t understand the First Amendment, which doesn’t protect Limbaugh and Dr. Laura from their corporate bosses, angry listeners or popular boycotts — it protects them from federal laws restricting free speech and press. An example of a federal law that would infringe upon free speech and press would be a copyright law that forbids journalists from excerpting and criticizing Sarah Palin’s videos. We don’t know whether she supports such a law, but her production partners clearly believe the law forbids it.
Fortunately, though, YouTube supports fair use and as of yesterday the video clips were restored and my account remains fully functional.
I should also note that similar claims are made against other YouTube accounts all the time, and I would urge journalists and commentators to pursue counter-claims if fair use guidelines apply. But if Palin and TAPP TV have money to burn on legal squirming, they can still track me down with cease and desist letters. For that, we’ll wait and see. For now, here’s the original offending clip presented in the context of fair use.