Legal News

Ben Stein and the ?Fair Use Doctrine of Free Speech?

By Dan Slater

Newly-returned from three days at the Harry Potter fair use trial, a veritable crash course in fair use, the Law Blog was interested this morning to read that the producers of an upcoming movie — starring a lawyer, no less — had invoked fair use in a statement they put out.

Online at WSJ today is an article by the Journal’s Ethan Smith in L.A. about a group of filmmakers who, according to the piece, have “incurred the wrath” of Yoko Ono, John Lennon’s widow, for using 25 seconds of the song “Imagine” in their movie, “Expelled: No Intelligence Allowed,” which opens tomorrow.

The film, according to the WSJ, stars Ben Stein, a Yale-educated lawyer, game-show host, journalist and actor (”Bueller? Bueller?”) who for the film affects a persona akin to a conservative version of Michael Moore (”Sicko,” “Fahrenheit 9/11″). The film apparently tries to make the point that American academia discriminates against people who espouse “intelligent design” theory — an alternative to evolution that would allow for the participation of a supernatural force in critical biological processes.

In a statement, the film’s producers conceded that they didn’t seek permission, but they called the use “momentary,” and said, after “seeking the opinion of legal counsel it was seen as a First Amendment issue and protected under the fair use doctrine of free speech.” Huh.

The article reminds us that, typically, when producers want to use a song in a film or television program, they need permission from at least two parties: the song’s publisher and the record label that distributes the recording they want to use. Yoko’s lawyer, Jonas Herbsman, of Shukat, Arrow, Hafer, Weber & Herbsman, told the WSJ that the music was not licensed. With respect to the filmmakers, he said: “We are exploring all options.”

Full post as published by Law Blog - WSJ.com on April 17, 2008 (boomark / email).