It sounds that way to me. His case sounds weak. Though it does depend on how much of the show they used, of course.
Sam, it could be an interesting case. You are correct in that the ultimate question of “fair use” will often hinge on the amount of material actually “copied.” But, Savage’s case does raise some interesting issues with respect to the “purpose and character of use” and, to a lesser extent, the “effect of the use upon the potential market for or value of the copyrighted work.” (Those are 2 of the 4 factors used in a “fair use” analysis under copyright law.) I still think he will lose, but it could get interesting (at least to an IP attorney). I do hope that his attorney (David Horowitz) has already sought the assistance of attorneys experienced in copyright matters. It’s a highly complex area of the law and he will definitely need some help (and I don’t mean that as an unfavorable comment on Horowitz’s own abilities).
The idea was to get them into court and under oath.
Then in discovery, ask for all the stuff that was asked for in this action:
"The Anti-CAIR website, www.anti-cair-net.org, reports a “mutually agreeable settlement,” the terms of which are confidential. However, Whitehead notes that he issued no public apology to CAIR, made no retractions or corrections, and left the Anti-CAIR website unchanged, so that it continues to post the statements that triggered CAIR’s suit. Specifically, CAIR had complained about Whitehead calling it a “terrorist supporting front organization … founded by Hamas supporters” that aims “to make radical Islam the dominant religion in the United States.” It also objected to being described as “dedicated to the overthrow of the United States Constitution and the installation of an Islamic theocracy in America.”