Legal News

Yoko Ono?s Injunction Request Denied in Federal ?Expelled? Case

By Dan Slater

Transformation trumps all. That’s the lesson we take away from today’s decision, authored by the SDNY’s Sidney Stein, in the case of Yoko Ono versus Premise Media, the producer of the film “Expelled.” Here’s the opinion denying Ono’s preliminary injunction motion.

Backstory: The film, starring journalist and actor Ben Stein (Columbia, ‘66; Yale law, ‘70), tries to make the point that American academia discriminates against people who espouse “intelligent design” theory — an alternative to evolution. In the course of ridiculing what they see as an academic world dominated by secular views, the filmmakers use a 15 second clip of John Lennon’s song “Imagine” (”Nothing to kill or die for/And no religion too”). The purpose of using the clip, according to Premise’s lawyer, Stanford’s Anthony Falzone, is to criticize the song’s “overtly anti-religious message” as “dangerously naive.” (Past LB coverage of the case here and here.)

In batting down Ono’s PI motion, Judge Stein (no relation, as far as we know) said the plaintiffs failed to show “a clear likelihood of success on the merits” — one of the prongs of the PI analysis — because, “on the basis of the current record, defendants are likely to prevail on their affirmative defense of fair use.”

While conceding that “Expelled” is a commercial film, and that the copyrighted work, Lennon’s “Imagine,” is the kind of work that lies at the “core” of copyright protection, Judge Stein appeared to give credence to the defendants’ theory that the sequence of the movie that includes the 15 seconds of “Imagine” amounts to a “layered criticism and commentary of the song.” In other words, the movie-makers adequately “transformed” the work. Citing testimony, Judge Stein — who later in the opinion compares the case to a Second Circuit precedent called Blanch v. Koons — writes:

The Cold War-era images of marching soldiers, followed by the image of [Joseph] Stalin, express the filmmakers’ view that [”Imagine”’s] secular utopian vision ‘cannot be maintained without realization in a politicized form’ and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naivete of John Lennon’s views.

Still pending is a parallel suit, filed in New York State court, by EMI Music, which says it owns the song recording — i.e. Lennon’s recorded performance, as distinct from the musical composition. Among other things, EMI claims that by using the song, Premise is harming EMI’s ability to license “Imagine,” which has only been licensed in one film, “The Killing Fields.”

However, in today’s opinion from federal court, Judge Stein wrote that Yoko Ono “proffered no evidence to date that permitting defendants to use a fifteen-second portion on of the song for a transformative purpose will usurp the market for licensing [“Imagine”] for traditional uses.”

Full post as published by Law Blog - WSJ.com on June 02, 2008 (boomark / email).