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Imagine There Was Fair Use

By Senior Copyright Counsel, Google Inc.

John Lennon's song "Imagine" is world famous, and I confess to both liking and disliking it; the dislike part comes having grown up in Northern California in the 1960s around way too many counterculture slogans and charlatans, even as it was all a great time. To me the song evokes parts of that era I find self-indulgent and fatuous, but even more importantly it is difficult to reconcile the gentle Utopian vision of the song with Lennon's subsequent murder. His widow, Yoko Ono, is a vigilant even enthusiastic protector of her late husband's legacy, but has licensed a number of uses of the song, in the 1984 movie Killing Fields, at the opening ceremony of the 2006 Winter Olympics, and for use at Times Square on New Year's Eve.

On June 2d, a district judge in the SDNY denied a motion for a preliminary injunction over the use of 15 seconds of the song in the movie "EXPELLED: No Intelligence Allowed," finding that defendants are likely to prevail on their fair use defense. Both attorneys in the case, Anthony Falzone (for defendant) and Dorothy Weber (for Yoko et al) litigated the motion extremely well and cordially. The opinion may be found here on Stanford"s Center for Internet and Society website. Briefs may be found here at the same site. (There is a parallel state court action and preliminary motion pending on a pre-1972 sound recording claim).

Defendant's movie consists mostly of actor/writer Ben Stein's interviews with proponents of intelligent design and defenders of Darwinian evolution, interspersed with stock historical footage and some songs, all of which were licensed but for Imagine. The 15 seconds used from Imagine comes about 65 minutes into the film and includes the lines: "Nothing to kill or die for/And no religion too," synched with four sequences, the first showing a group of children in a circle, the second a young girl spinning; the third a military parade, the fourth a close up of Stalin waving. Right before the sequences is a segment in which individuals express negative views of religion, which prompts Ben Stein to correlate those views to Lennon's song. The message of the movie is that the filmmakers too envision a world without religion. (opn. p 12). How beautiful.

I find the movie offensive, and it certainly plays into why liberal Democrats are successfully portrayed as being anti-religious: some of them are, and sneeringly so. That said, the court's fair use finding is correct to me. Yoko argued that there was no transformative use because defendants did no alter the song but merely cut and pasted it. The court though found that the use was transformative because defendants "put the song to a different purpose, selected an excerpt containing the ideas they wanted to critique, paired the music and lyrics with images that contrast with the song's utopian expression, and placed the excerpt in the context of a debate about the role of religion in public life." (p. 15)

Full post as published by The Patry Copyright Blog on June 04, 2008 (boomark / email).