06/26/2012 05:20 pm ET Updated Aug 26, 2012

Judge Rules It's Fair to Appropriate Abortion Clinic's Video

Overturning thousands of years of common understanding of what constitutes a parody, not to mention several Supreme Court decisions, a Federal Judge in the United States District Court in Santa Ana, California ruled against an abortion clinic operator whose video had been obtained without permission by anti-abortion activists and used as part of a new video that humorlessly discredits the clinic's counseling services.

Judge James Selna issued his ruling June 15, denying Michigan-based Northland Family Planning Clinic's copyright infringement claims against the anti-abortion Center for Bio-Ethical Reform (CBR) and several other collaborators who'd re-edited the Northland video without permission, adding close up scenes of "dismembering and removing fetuses," biblical quotations and other images juxtaposed to the original video. In all, about 50 percent of the new, four minute, Bio-Ethical video was comprised of Northland's video footage.

Northland Clinic's director, Renee Chelian sued CBR for copyright infringement and CBR responded claiming incorporating her video into their own was protected by a provision of the Copyright Act called "fair use."

The fair use doctrine, often cited by documentary filmmakers who've been denied the ability to use footage or music to help them tell a story that is in the public interest, is open to interpretation. Congress, and before that, English common law recognized the need to protect copyright but not to stifle the growth of human understanding. The line between copyright infringement and fair use is a bit murky and each case is subject to the interpretation of the courts. It's still guided by principles that an English aristocrat Lord Ellenborough expressed in the 19th century. "While I shall think myself bound to secure every man in the enjoyment of his copy-right, one must not put manacles upon science."

The case before this court revolved around whether CBR's combining its shockingly graphic images with Northland's original video fit within the Fair Use framework that set outs four rather broad guidelines that include the "amount" of the copyrighted work used and "the effect of the use upon the" marketability of the original work.

Northland's lawyers argued that CBR's video damaged the market for the counseling video and that using over 50 percent of it was excessive. The rule of thumb among documentary filmmakers, which isn't codified, is to use as little as possible to make your point. The common belief is that the courts will allow about 30 seconds of a clip or a few bars of a song. The point is to make your point and move on.

There is one area though where size, or length, doesn't matter -- parody. The penalties for overstepping the unwritten guidelines might have once meant losing your head but it's been protected since ancient Greek poets and later, Elizabethan bards and jesters skewered the powers that be with poems, songs and witty repartee.

This noisome zone of fair use or abuse has been used to great effect by those who see wit as a tool of social criticism. But much like patriotism, which Samuel Johnson described as "the last refuge of a scoundrel" the opportunity exists to attempt to hide behind parody's skirts in order to justify a misappropriation.

CBR's lawyers claimed their client's intent was to create a parody and Northland's lawyers countered that what they did wasn't funny nor was it satirical or in any other way did it meet the standards for what we think of as a parody.

Interpreting Supreme Court cases, including one involving Barbie, became the linchpins in this dispute between opponents in the abortion debate.

Chelian's attorney, Harrison Frahn, of the highly respected copyright defense firm, Simpson, Thacher and Bartlett, argued that the intent of a parody had to be humor. He cited a case where Mattel Corporation sued to stop an artist, Thomas Forsythe, from making or selling photographs that showed the company's "Barbie" doll nude and "in danger of being attacked by vintage household appliances." Among his 386 plus slides and photos were: "Malted Barbie" showing the naked doll on top of a Hamilton Beach malt machine. "Fondue Barbe" that put her head in a fondue pot and "Barbie Enchiladas" where he wraps four salsa covered Barbies in tortillas and places them in a casserole dish that's been popped into the oven.

In a court brief in his own case, he artist explained that "he chose to parody Barbie in his photographs because he believes that "Barbie is the most enduring of those products that feed on the insecurities of our beauty and perfection obsessed consumer culture." He claimed he wanted to "communicate, through artistic expression, his serious message with an element of humor."

Citing the Barbie case prompted the defense lawyer, Robert Muise, from the American Freedom Law Center, to jump to his feet to let the court know that as "the father of 10 girls he doesn't find messing with Barbie amusing." He didn't appreciate anyone "taking the role of women and turning it on its head."

Frahn citing the ruling in the Barbie case argued that the Court in deciding against Mattel recognized that a defense of parody requires that "the plaintiff's copyrighted work is... the target of the defendant's satire." The intent has to be humor.

Judge Salen agreed that the CBR video wasn't funny but disagreed that humor was a factor in parody. He tried to wrap up the proceedings with a biblical quote, "you can hate the sin but love the sinner," causing the CBR attorney to leap up again to say this is about "abortion."

The defendants met reporters outside the courtroom and defended their parody defense. We didn't say she "is a murderer."

This is the first salvo in a series of videos that CBR has planned according to a CBR memo sent to me by Gregg Cunningham, CBR's executive director.

"We are preparing similar Fair Use critiques of every abortion clinic video... We are finding these videos in the U.S. and our international CBR affiliates are working on them abroad. Northland is only a pilot project."

Stay tuned but don't expect to laugh.