Why they did it 3

So why did Stanford Law’s Fair Use Project decide to defend the makers of Expelled: No Intelligence Allowed in a copyright infringement lawsuit? To protect their free speech rights, the project’s executive director said yesterday in his blog.

The legal tussle revolves around the movie’s use of part of John Lennon’s song, “Imagine,” to suggest how “Darwinism” might lead to atheism. Reports vary as to the length of the clip, from 10 to 25 seconds, but in any event the copyright holders to the song were not amused.

Lennon’s widow, Yoko Ono Lennon, and sons, Sean and Julian, along with his publisher, EMI Blackwood Publishing, filed a copyright and trademark infringement suit April 22 in US District Court in Manhattan, demanding the current version of the film be pulled from theaters and that further distribution of the film be barred. They also asked for at least $75,000 in damages.

Until he hears both sides of the case next Monday, District Court Judge Sidney Stein issued a temporary restraining order April 30 preventing Expelled‘s makers from distributing the movie to any more theaters or in DVD form. His order did not affect the movie’s screenings (dwindling as we speak) already in place.

EMI apparently also filed a similar suit in NY state court, though I do not have those details yet.

Premise Media, the producers of the anti-evolution film, contends that its use of the Lennon clip was permissible under the fair use doctrine of US copyright law, which gives critics and commentators some leeway in quoting copyrighted material.

The Fair Use Project announced just a few days after the Lennon suit that it would defend Premise Media and its co-defendants. Yesterday, the project’s exec, Anthony Falzone, explained why.

Expelled: No Intelligence Allowed is a controversial documentary about a contentious issue: whether proponents of intelligent design are being unfairly silenced in academia and beyond. It has been shown on more than 1000 theater screens nationwide, and its producers have drawn praise from some circles and scorching criticism from others. Right or wrong, good or bad, it’s a film that explores important issues of free speech, faith and science.

Yoko Ono Lennon has sued the film’s producers in federal court because the film uses a fifteen second clip of the John Lennon song “Imagine.” EMI, the record label that asserts ownership in the recording of song, has also sued the producers in state court. Both seek an immediate injunction forcing the removal of “Imagine” from the film.

We have agreed to defend the producers of the film in both actions. The reason is simple. The Film uses “Imagine” to critique, explicitly and implicitly, what the film suggests is the overtly anti-religous message embodied in the song, and to respond to this message by suggesting the absence of religion from society can have terrible social consequences. The right to quote from copyrighted works in order to criticize them and discuss the views they represent lies at the heart of the fair use doctrine. The lawsuits filed by Ono and EMI threaten important free speech rights that need to be defended.

Stay tuned for more information as the case develops.

Well, fair enough. I’m no legal eagle, but Premise et alia were asking for trouble when they failed to obtain permission to use the clip while obtaining similar permission for their use of other musicians’ work. They certainly have free speech rights — the whole movie is a crock, but hey, it’s a free country — but the question is whether they played by the rules.

Meanwhile, one could make the argument, as many have, that Yoko is lawsuit-happy, and that the suit is to some extent frivolous. She is pissed that a Huffington Post blogger erroneously suggested that she had “sold out” by allowing the song to be used in the movie, which generated a storm of anti-Yoko sentiment on the Internet. The blogger retracted his statement, but too late.

The Lennon suit alleges that the controversy harmed the reputation and trademark of John Lennon, his heirs and the special meaning of his “signature” song.

So, on the one hand, we have the film makers contending their criticism of “Imagine” was legal under Constitutional and copyright law. On the other, we have Lennon’s heirs arguing the clip was used without their permission in such a way that would harm their reputations, infringe their copyright and damage the Lennon trademark.

The outcome will be interesting, as it might clarify (or not) the extent to which critics can quote copyrighted material. If the case goes Yoko’s way, Premise Media will have to pull the existing version of the film now playing in about 400 theaters. Since its theater count has been dropping like a rock each week, such a recall would pretty much kill the movie’s theatrical engagement outright.

Then again, it might be a mercy killing.

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3 thoughts on “Why they did it

  1. Reply Andy G May 19,2008 7:14 am

    Defending Attorney wrote: “We have agreed to defend the producers of the film in both actions. The reason is simple. The Film uses “Imagine” to critique, explicitly and implicitly, what the film suggests is the overtly anti-religous message embodied in the song,”

    Great, that might work for Fair Use for the lyrics, but how about the use of the music?

    Let’s see how his argument stands up if we replace “song” with “music”.

    -The reason is simple. The Film uses “Imagine” to critique, explicitly and implicitly, what the film suggests is the overtly anti-religious message embodied in the music. –


    For example, instead of hearing the recording with the music and lyrics, what if Ben Stein had gone over to a piano and played 15 seconds of the song “Imagine” along with the images? That’s not Fair Use, how could it be? The music itself doesn’t have an “overtly anti-religious messege”. Music itself doesn’t have any messege at all! That’s why it’s so hard to justify Fair Use of music in a film. And since the film did not comment on nor critique the music, and because the music can’t comment on nor critique the images to which it was associated, I don’t see any way the use of the music in this case could be considered “fair”.

    The fact simply is that the filmmaker’s did not by any stretch of the imagination need to use the song “Imagine” in order to make their film. They are perfectly within their Freedom of Speech rights to make the film without it, which is what they should have done in the first place. That they CHOSE to use the music rather than just the lyrics suggests that to have watched that 15 second montage without it would have been pretty boring. Therefore, the use of the music “spiced up” their film. It made their film better. If it had been 15 seconds of YOUR music that that the filmmaker’s nicked for their commercially-released film, you’d want the judge to defend your rights, wouldn’t you?

    That’s all Yoko Ono is doing here – protecting all songwriters and composers rights. Remember that songwriters and composers aren’t all fabulously wealthy (it’s the exception rather than the rule). There’s lots of work-a-day composers that would be seriously financially impacted if uses like this, which are common in film, are considered Fair Use. It would be a dangerously bad precedent, and I doubt Judge Stein is going to care to set it.

    Presumably we shall find out by the end of the day …

  2. Reply wheatdogg May 20,2008 2:11 pm

    True. Setting the whole ID/Expelled fracas aside, the Lennon suit would help clarify the “fair use” of copyrighted material. I wonder if the producers chose the song specifically to ridicule it, and concocted its connection to “Darwinism” as an afterthought. That is, they brought in the song to take cheap shots at it, sort of by the way.

    I’m hoping Premise Media loses this suit. The flick will leave the theaters pretty soon anyway, so they would then need to recut the movie for DVD release sans “Imagine.” On the other hand, as a writer and critic, I’d rather not have too many restrictions on my quoting others’ works.

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