Using Video to Criticize Ex-Muslim Preacher Protected as Fair Use From Copyright Claim

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By Anandashankar Mazumdar  

May 16 — The use of videos of an ex-Muslim Christian evangelist to debunk claims and criticize the preacher constituted fair use, the U.S. District Court for the Western District of Virginia ruled May 14.

Granting summary judgment in favor of a defendant who had posted edited videos to YouTube, the court said that the use in question was transformative and protected as fair use even if it resulted in harming the value of the video through its criticism. The court also allowed for use of the entire video in order to execute a thorough criticism.

Ex-Muslim Preacher's Claims Debunked

Ergun Michael Caner of Arlington, Texas, was born in 1966 in Sweden. His father was a Turk and his mother a Swede. The family subsequently moved to Ohio where Caner was initially raised as a Muslim, according to his father's wishes. Some time after Caner's parents divorced, Caner became a born-again Christian.

After the 2001 terrorist attacks in the United States, Caner and his brother published a book, “Unveiling Islam,” which criticized Islam. The book became a best-seller and Caner became a popular evangelical speaker. Jerry Falwell asked Caner to join the faculty at Liberty University, Lynchburg, Va. In 2005, Caner was named dean of Liberty's Baptist Theological Seminary.

In 2010, however, certain individuals began questioning Caner's claims that he had been raised in Turkey, where he had been indoctrinated in extremist Islamic philosophy, as well as other claims about his life. Liberty University conducted an investigation and eventually dismissed Caner from his position. Caner then took a position in the administration of Arlington Baptist College.

Jonathan Autry, who had been a student and employee at Liberty while Caner was dean, posted two videos to YouTube. The videos took recordings of Caner speaking about Islam at the invitation of the U.S. Marine Corps and interspersed commentary and criticism, seeking to debunk Caner's claims about his personal history.

In May 2013, Caner submitted a takedown notice to YouTube but Autry disputed the takedown and YouTube informed Caner that it would re-post the videos unless Caner brought a legal action within 10 days. Caner then sued Autry and Jason Smathers in the U.S. District Court for the Northern District of Texas, alleging copyright infringement and seeking a permanent injunction. The Texas court severed the claims against Autry and transferred them to the U.S. District Court for the Western District of Virginia.

Autry moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim for which relief is available under the law or for summary judgment pursuant to Rule 56(a).

One Claim Dispensed for Lack of Registration

Considering the motion as a summary judgment motion, the court first dispensed with the claims regarding the second video because Caner had failed to show that he had registered his copyright interest with the Copyright Office.

In so doing, the court adopted the “application approach” for determining whether a plaintiff in a copyright infringement proceeding has complied with the registration requirement. However, the court found that Caner had failed to meet the registration requirement under either the application approach or the registration approach with respect to the second video.

Turning to the remaining video, the court noted that Caner had “failed to address or contest Defendant's assertions that Defendant posted the videos as a fair-use criticism of Plaintiff, or that Plaintiff waived his exclusive rights or gave license to others to sue the videos.”

Applying the standards of the fair use provision of the Copyright Act, 17 U.S.C. §107, the court first determined that the edited videos were transformative. The court rejected Caner's argument that summary judgment was not appropriate because he should be given the opportunity to conduct discovery regarding Autry's motives. According to Caner, Autry was a disgruntled ex-employee and thus was acting in bad faith.

However, the court said, that kind of intent is exactly was is protected by the fair use doctrine. To the extent that bad faith is relevant in such a situation, it is the bad faith intent to profit from the unauthorized copying of someone else's work.

“Many speakers who criticize others using copyrighted works may be motivated to do so based on dislike or distrust of the object of their criticism,” the court said. “If that were a barrier to free speech, fair use would offer little protection, and the analysis would delve courts into a complex and highly subjective inquiry about the motivations and relationships between parties.”

Turning to the Section 107 factor addressing the amount and substantiality of the portion of the original work used, the court found that Autry's use of the entire presentation before the U.S. Marine Corps was justified.

The court found “that a criticism involving contradictory statements may necessitate use of an entire work” and that “it would be senseless to allow Defendant to criticize Plaintiff, but only less effectively, by using portions of the video.”

Finally, turning to the fourth fair use factor—the effect of the use on the work's value or market—the court said that forceful “criticism that has the potential to destroy the market for a copyrighted work does not prevent a finding of fair use.” The court said that

it has long been established that fair use protects the transformative use of a work to criticize, even when the parody or criticism is so forceful that it may eliminate the market for the object of the criticism. To do otherwise would stifle free-flowing debate and criticism in the name of protecting original works and creative labors, taking copyright protections far beyond their intended bounds.


The court thus concluded that Autry's use of the video was protected as fair use and granted summary judgment in his favor.

The court's opinion was delivered by Judge Norman K. Moon. Caner was represented by M. Kevin Bailey PLLC, Lynchburg, Va. Autry was represented by Pafford Lawrence & Childress PLLC, Lynchburg.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at

To contact the editor responsible for this story: Naresh Sritharan at

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