Stanford Fair Use Project to defend EXPELLED’s use of “Imagine”

_{William Dembski

May 1, 2008

Expelled}

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I was speaking to one of the producers of Ben Stein’s EXPELLED the other day. We were discussing Yoko Ono’s suit against them for the brief clip of “Imagine” that appeared in EXPELLED. As it is, plenty of for-profit media/film outlets use clips of material for which they don’t get permission (you think the news networks or Jon Stewart’s Daily Show gets permission for everything they show?). Such use is legitimate and falls under what is called “fair use.” As I was speaking to the producer, he mentioned cryptically that there was a big development in the works that would greatly strengthen their hand against Ono. Well, it’s now clear what that is:

“The right to quote from copyrighted works in order to criticize them and discuss the views they may represent lies at the heart of the fair use doctrine,” said Anthony Falzone, executive director of the [Stanford] Fair Use Project. “These rights are under attack here, and we plan to defend them.”

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Comments

I now realize that "symbolic speech" is the correct legal term for how "Expelled" uses the song "Imagine." The courts recognize symbolic speech as being speech for purposes of the First Amendment's free speech clause. It cannot be claimed that "Expelled" does not comment about the song just because the commentary is nonverbal. Also, the complaint of Yoko Ono et al. -- at the bottom of this webpage -- does not even mention the fair use law, 17 USC §107, let alone try to show that this law is not satisfied by "Expelled"s use of "Imagine." Since the plaintiffs are essentially claiming that "Expelled"'s use of "Imagine" does not satisfy the fair use law, then (1) either the plaintiffs should amend their complaint with arguments of how the fair use law is not satisfied or (2) the case should be dismissed because of lack of jurisdiction and/or failure to state a claim upon which relief can be granted. The fair use law includes the following provisions:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
This is not a list of tests that must be passed but is only a list of factors that must be considered. Also, these factors are very general and subject to broad interpretations. Here are my evaluations:
(1) the purpose and character of the use --
Symbolic or nonverbal commentary about song. The movie leaves it up to the viewers to decide for themselves the significance of the song's words in relation to the accompanying scenes of the movie.
-- whether such use is of a commercial nature or is for nonprofit educational purposes
The movie is commercial rather than nonprofit, but that is far from being a fatal defect under the fair use law.
(2) the nature of the copyrighted work;
As a song that asks us to "imagine no possessions," it is arguably not even copyrightable.
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole
This one's easy -- the movie uses only about 15 seconds out of a song of about 3 minutes in length.
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Contrary to the plaintiffs' claim, the movie's use of the song does not imply approval or endorsement of the movie by the song's copyright owners. There should be no significant effect on the song's value or potential market. The statement by some bloggers that Yoko Ono "sold out" to the "Expelled" producers -- which BTW is a false statement and which was even retracted -- is not grounds for denying fair use. Also, no permission or request of permission is required for fair use. I can't find a copy of the complaint that Capitol Records and EMI Records filed in a state court.Larry Fafarman_{May 2, 2008
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Here's a thought -- how can the courts argue that flag-burning is constitutionally protected symbolic free expression, but that unauthorized use of only 15 seconds of a song in a movie is not?Larry Fafarman_{May 1, 2008
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A new stanza for "Imagine" -- Imagine there are no copyrights, it isn't hard to do. Nothing to cause court fights, no reason for to sue. Imagine all the people, staying out of courtLarry Fafarman_{May 1, 2008
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Utkan Rose said,
Larry, why don’t you offer your services to the production team, I’m sure another legal mind could be put to good use!
Yes, I intend to do exactly that! The more good legal heads, the better! I could have given some good legal advice to the attorneys who sued over California's unconstitutional smog impact fee on incoming out-of-state vehicles. In my lawsuit, I made a crucial constitutional argument that they missed -- and I was later vindicated when my argument was supported by a former top state emissions control official's testimony in their lawsuit! Upright BiPed said,
Perhaps the continued wranglings over Expelled are having the desired effect
I am beginning to suspect that clever Ben Stein arranged this whole affair in advance with Yoko Ono and is cutting her in on the profits. That is the only reasonable explanation -- I cannot "imagine" anyone suing over the fair use of a few seconds of a song.Larry Fafarman_{May 1, 2008
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Perhaps the continued wranglings over Expelled are having the desired effect, it went through the weekend at #13, then was #12 on Monday and #11 in Tuesday (and was #4 in the nation for revenue-per-screen). I would certainly hope that the number of screens are not reduced. It does not seem to warrant it.Upright BiPed_{May 1, 2008
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In any other context -- e.g., a quotation of a few words in a written work -- this would be considered to be a clear-cut case of fair use.Larry Fafarman_{May 1, 2008
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I am not surprised that the Fair Use Project decided to pro-bono "Expelled." I figured that they were hungry for a high-profile test case like this.Larry Fafarman_{May 1, 2008
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The article said,
Premise Media contends it has the right to use the song under the fair use doctrine, which among other things permits the use of copyrighted material for the purpose of comment, criticism, and discussion. “The right to quote from copyrighted works in order to criticize them and discuss the views they may represent lies at the heart of the fair use doctrine,” said Anthony Falzone, executive director of the Fair Use Project. “These rights are under attack here, and we plan to defend them.” (emphasis added)
Some argue that "Expelled"s use of "Imagine" is not really fair use because the movie does not verbally and explicitly criticize, comment on, or discuss the significance of the song's words in relation to the accompanying scenes in the movie. But the movie leaves it to the viewers to decide that significance for themselves. IMO, that is still fair use. The scene itself is a nonverbal commentary on the song. It's like a political cartoon where interpretation of the cartoon is left up to the viewer. If the movie tried to explain the song's significance in the movie, the effect would be spoiled.Larry Fafarman_{May 1, 2008
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Jack,
Premise must be in throes of ecstasy.
I'd imagine that might be true, but only if the publicity translates into people on seats paying for a ticket. For example, this site http://tinyurl.com/5nkce6 appears to indicate that the number of screens showing EXPELLED will drop to 655 shortly.Uthan Rose_{May 1, 2008
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DaveScot: Perhaps the positive atheists are attempting to dig through to the other side of the earth. This would be in keeping with their ideas about freedom and liberation.William Dembski_{May 1, 2008
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Imagine free publicity The positive atheists still haven't learned the first lesson of holes: When you've dug yourself into a hole the first thing to do is stop digging.DaveScot_{May 1, 2008
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This is GREAT news! There once was a lady named Yoko, who had a mind that was quite loco. When she tried to sue, she later did rue, 'cause the lawyers she faced were pro bono. There once was a lady named Yoko, who had a last name that was Ono. Because of her fame, she has a new name, it's now Loco Bozo Oh-No-No. The following two limericks were written by Jim Sherwood -- One Yoko, who's Loco, said "No! I IMAGINE I'm losing some dough. My only obsession's With all the possessions That Strawberry Fields can grow." This is a reference to the fortune in free advertising that Yo-Yo Oh-No-No gets from the Strawberry Fields section of Central Park while she is too chintzy to allow a few seconds of fair use of "Imagine." Said Yoko, "I'm free of all greed! I IMAGINE, as Johnny decreed, I'll let property go. I'll go Loco, and know How to peck with the birds, as they feed." This is a reference to the pigeons who inhabit Strawberry Fields.Larry Fafarman_{May 1, 2008
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JPCollado at 1 and Mike 5 Focus on the logical/legal arguments and lay of the ad hominem - unless you want to reside in asylums thanks to the Most Equal Leader - where too many spent time this last century. See Aleksandr Solzhenitsyn, First Circle (1997) 580 pages, Northwestern University Press ISBN-10: 0810115905 Note:
I was arrested on the grounds of what the censorship had found during the years 1944-45 in my correspondence with a school friend, mainly because of certain disrespectful remarks about Stalin, although we referred to him in disguised terms.

In 1946, as a mathematician, I was transferred to the group of scientific research institutes of the MVD-MOB (Ministry of Internal Affairs, Ministry of State Security). I spent the middle period of my sentence in such "SPECIAL PRISONS" (The First Circle).

The printing of my work was, however, stopped almost immediately and the authorities stopped both my plays and (in 1964) the novel, The First Circle, which, in 1965, was seized together with my papers from the past years. During these months it seemed to me that I had committed an unpardonable mistake by revealing my work prematurely and that because of this I should not be able to carry it to a conclusion.
Freedom must be preserved, and defended , else you will lose it.DLH_{May 1, 2008
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Hey, now, let's not be too catty about Yoko. I've run into a few women in my time who live in the shadow of the great man's monument. It's basically their main action in life. Who knew Yoko was even still alive? Now we know, and why is that? This is a good case for the Stanford Fair Use group, because they probably can't be accused of taking it for political correctness reasons. They can focus on the issue they want adjudicated.O'Leary_{May 1, 2008
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Yoko deserves to go to an asylum for what she did 38 years ago. :-)-MIKE-_{May 1, 2008
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Brilliant move by the producers. Illustrate the problem through the reaction to the movie itself ... poetry in motion.ungtss_{May 1, 2008
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Just "imagine" if this lawsuit got a fraction of the kind of coverage OJ or Brittany Spears gets. Premise must be in throes of ecstasy.Jack Golightly_{May 1, 2008
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-ditto JP's statement.FtK1_{May 1, 2008
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After seeing the movie and the meager seconds that it parcels out to Imagine, I now think that Yoko probably derseves to go to an asylum until she recuperates from whatever mental torment she is suffering from.JPCollado_{May 1, 2008
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