June 2, 2008  ·  Lessig

We (Stanford’s Fair Use Project) got word of another great success today. We’re representing the filmmakers of Ben Stein’s Expelled. The film is an attack on the culture that forbids “intelligent design” from being considered seriously. (I’m a member of that culture.) The film uses a 15 second snippet of John Lennon’s “Imagine.” Yoko Ono was not happy with the use, and sued. In a decision issued this morning, Judge Stein denied Ono’s motion for an injunction against the film, finding we were likely to prevail on our fair use defense.

To borrow a bit more:

“Imagine all the people
Sharing all [at least some of] the world[s].”

  • http://www.digitalproductions.co.uk Crosbie Fitch

    And one day we will also be free to share and perform all songs, lyrics, recordings, etc. without needing to obtain permission or pay royalty, even from the moment of publication – without needing to wait for a monopoly to expire.

    Because, of course, the musicians will already have been paid in full, or will have chosen to give their work away as promotional.

  • http://amundsen.com/blog/ Mike Amundsen

    while i, personally, am not happy at all with the movie (Expelled) and i can see why Yoko Ono would not be happy with their use of the song “Imagine”, i gotta agree that you are doing a good thing here and that we’re all better off for it.

    thanks!

  • Beowulff

    I have to say I’m torn about this. I support a wider interpretation of fair use, and fair use and free speech should be extended to those who we don’t agree with too, but Expelled being allowed to use ‘Imagine’ to suggest that atheism leads to badness still feels kind of wrong to me.

    I am not a lawyer, but if I read the PDF of the ruling correctly (and please correct me if I didn’t), Ono’s request was denied mostly because the use was in a work in the public interest, it was transformative (they played stock footage behind it that contradicted the content of the song fragment) and, finally, it was used with the intention of critiquing the song.

    I didn’t see much in the ruling that seems to address the claims of the makers of the movie critically, though. For instance, the movie is supposedly “in the public interest” but contains so much misinformation that I would seriously doubt that classification. Furthermore, the song ‘Imagine’ doesn’t seem to be used to critique the song, but to critique PZ Myers and/or his ideas. The argument that absence of religion leads to dictatorships did not absolutely require ‘Imagine’ to be made either (Unfortunately, I doubt if it matters for the law that the argument is invalid to begin with). Also, the judge ruled that the defendants established “the movie contributes to the broader public interest by stimulating debate on an issue of current political concern.” However, I think that the part of the movie where ‘Imagine’ is used clearly defends and promotes religion, which can’t be seen as a a “current political concern”.

    Have these matters been addressed in the case, even if they didn’t make it into the ruling? Are they valid concerns to begin with? Do they have any legal merit? Just wondering.

  • http://afinerworld.blogspot.com B.Dewhirst

    I’m afraid that accepting clients who seem to… have a problem with honesty… may be too great of a liability for the EFF.

  • http://www.highprogrammer.com/alan/ Alan De Smet

    Ick. The Expelled people sicken me with their deception and trickery. But if we don’t support this freedom for people we don’t like, what’s the point. So I’m glad the FUP took up the case.

    @Beowulff: The quality of the information is and should be irrelevant to the judicial decision. I sure as heck don’t want our legal system to try and make such judgements. It’s too hard. And given that there is active ongoing debate is about teaching intelligent design in public schools, it’s very much an active political concern. Just because we think they’re crazy doesn’t mean they get fewer rights than we demand for ourselves. I do agree that from the description, it sounds like “Imagine” is just being used as ironic background music. It wasn’t accidentally included in a recording, and it’s not the subject under discussion. As such, it sounds like a decidedly non-fair use.

  • http://wiki.hypertwins.org/woozle Woozle

    While I agree with the sentiment against Expelled and kind of mentally go “ewww!” when I think of one of the good guys doing anything to help Stein & co., it occurs to me that however this comes out it should be a good counterpoint to raise whenever right-wingers (especially religious right-wingers) attack liberals for their defenses of civil liberty (e.g. the h8 many conservatives seem to have for the ACLU, and the fundie contention that liberals-and-atheists have no principles).

    Then again… how closely allied with the anti-evolution movement are most conservatives? It seems to be a good chunk of them, but it could just be a loud chunk rather than a large chunk.

    Either way: good luck, and may justice be served.

  • http://im-from-missouri.blogspot.com/ Larry Fafarman

    Beowulff said,

    “The argument that absence of religion leads to dictatorships did not absolutely require ‘Imagine’ to be made either.”

    “O reason not the need! Our basest beggars
    Are in the poorest thing superfluous.
    Allow not nature more than nature needs,
    Man’s life is as cheap as beast’s. Thou art a lady:
    If only to go warm were gorgeous,
    Why, nature needs not what thou gorgeous wear’st,
    Which scarcely keeps thee warm . . .
    . . . . O Fool, I shall go mad!”
    — from “King Lear” by Shakespeare

    Alan De Smet said,

    “@Beowulff: The quality of the information is and should be irrelevant to the judicial decision. I sure as heck don’t want our legal system to try and make such judgements.”

    Right. Judges are not movie critics. The judge’s two thumbs up are for fair use, not the movie.

    ” I do agree that from the description, it sounds like “Imagine” is just being used as ironic background music. “

    Wrong. The movie’s use of the song makes both verbal and symbolic commentary on the song and other things. The right to make commentary is a First Amendment freedom of expression right that copyright holders must not be allowed to infringe upon.

    My blog has a series of articles about the case, under the following post label links –

    http://im-from-missouri.blogspot.com/search/label/Yoko%20Ono%20lawsuit

    http://im-from-missouri.blogspot.com/search/label/Yoko%20Ono%20lawsuit%20%28new%20%231%29

    Or just go to my blog and click on the two “Yoko Ono lawsuit” post labels in the sidebar –
    http://im-from-missouri.blogspot.com/

  • http://gnuosphere.wordpress.com/ Peter

    Great result! Too bad PZ Myers is having a difficult time accepting that this is the right call regardless of the fact that Expelled encourages muddled thinking.

    Or another way to look at it is, we really don’t need an injunction impeding our ability to do what we can to save the planet. RAmen! :)

  • http://www.hsporterfield.com Harry Porterfield

    I have a question. What is your take on Expelled use of the XVIVO film “Inner Life of a Cell”? Is that fair use or is that plagiarism?

    -Harry

  • Shane

    Well, I think the Expelled producers are lying scum. But I think the Fair Use claim is a strong one and that strong Fair Use is a vital asset for criticism of all kinds, and will be especially useful in, say, dissecting the trash that is “Expelled.” My only misgiving is that the Expelled producers seem to have a history of being less than honest and worry that might have a negative impact on the success of the case and, in turn, set a bad precedent. But, so far so good.

    Now, as to the apparent slippery slope sarcasm of Mr. Crosbie Fitch, I would note that the producers paid for all the other songs, ones where rights were available and were used for longer periods of time. This is not a slippery slope but a vital and narrow exception to an author’s monopoly on his work. Since the explicit constitutional purpose of Copyright is to advance the arts and sciences then an exemption should be provided where it has the effect of advancing the arts of sciences more than an absolute regime does, as is the case with Fair Use. Please also not that maximal profits or personal moral control of a work are not part of the explicit constitutional purpose of copyright and cannot be considered as a factor in deciding whether Fair Use is a reasonable public policy.

  • http://www.andrewweir.co.uk The Weir

    Hi and welcome back – hope you had a great time off the network.

    Okay, I haven’t seen the film. I can’t comment on it’s status as either vitriol or balanced reporting. Neither do I have a fondness for Yoko Ono. Is there not a delicious satire in using a song that is about inclusion in something that people seem determined to divide about.

    Picking up on Beowulff’s comments – as someone who would gladly be *labelled* a Jesus follower, then “religion” (or perhaps better referred to as “belief”) is a current political concern to me. It might not be to those who don’t agree with my belief, but does that mean we can’t have a broader spectrum of material to encourage discussion and debate? I don’t think so, do you?

    My belief is that the God who made everything as diverse as He did (as which point I’m sure plenty readers are frothing at the very thought) can handle a vigorous debate! My faith is not threatened by other people not believing it (cue comments about people have not problem with me being deluded on my own!)

    Good on FUP for backing the case and I’m glad we can have different views because if we all thought the same, where would the fun be in that?!

    Grace & Peace

    W

  • Beowulff

    At Alan De Smet: I can see how judging the quality of the information can be difficult to judge, but my common sense still tells me that misinformation can never be in the public interest. On the other hand, I agree that ID is a political concern (it sure isn’t a scientific one) and that the movie has stirred debate some. However, as I pointed out, ‘Imagine’ wasn’t used to illustrate the problems of ID, but to defend religion and critique atheism. Religion can’t be a political concern, since politics shouldn’t concern itself with religion. Religion Vs. Atheism is definitely not a current concern (funny, by the way, how PZ Myers was criticized by the judge for saying nothing new, but not the movie makers. Interesting, that.). It seems to me that this section of ‘Expelled’ should therefore not fall under the protection of serving the public interest by stimulating debate on current political concerns. What do you think?

  • Beowulff

    At The Weir:
    I agree that the debate of religion and atheism is a valid debate, and certainly in the public interest. I would definitely defend the right of Expelled to argue about religion and atheism in any way they please.

    However, I merely disagree that this is a political issue, since I think politics should stay as far away from religious matters as possible. Not sure if that matters for the fair use of ‘Imagine’ in Expelled, though, which is why I’m asking here :)

    And I agree, the FUP is doing important work.

  • http://www.mydating4love.com Darius

    It is indeed someone right to be treated in fairness in all cases. The bottom line of this case would be fair and balance for each party could arrange closed discussion or negotiation. Thus, if someone does not accept or does not meet the deal that might be due to the matter was not true or fair enough for them, we just avoid any early bad prejudices as well as respect for any action that might be taken to make this settle includes sue somebody. I hope this will be resolved. Let me watch that film to get full view of this case.

  • Robin Levett

    Please help a (UK and non-IP) fellow lawyer.

    From my (admittedly limited) understanding of copyright law, separate copyright subsists in (i) the lyrics (ii) the music and (iii) the performance of a song. A defence fo fair use musta ddress the specific cop[yright in issue in the proceedings.

    What was used in “Expelled” was an excerpt from the performance of the song. There is in the film, as I understand it from the ruling, no commentary on the performance, but only on the lyrics, of the song. The ruling appears to take as read however that criticism of the lyrics to a song is criticism of the performance of a song. Is this consistent with previous authority?

  • Robert Radcliffe

    How is it that people as fair-minded as the Fair Use Project can buy into the characterization of the professional science community as a “culture that forbids “intelligent design” from being considered seriously”? The problem isn’t a hostile “culture.” The reason intelligent design is not taken seriously in the scientific community is that intelligent design is not science, and it meets none of the criteria of a scientific theory. Rather ID is a vague set of notions that have been cobbled together as a cover for people to want to sneak Biblical creationism into public school science curricula. For much more detail on the fundamental intellectual bankruptcy of ID, see the Kitzmiller v. Dover opinion. The fundamental dishonesty of ID proponents is exemplified in Expelled, which–as documented in detail on the Expelled Exposed website–grossly misrepresents the alleged discrimination against ID proponents. In each case, either they did not suffer the harm alleged, or their academic career suffered not because of ID beliefs but because they simply couldn’t compete in a highly competitive field.

    So, while the Lennon fair use decision ultimately may be a good result in copyright law, it doesn’t justify promotion of the fundamentally dishonest political arguments made in the film.

  • James Day

    Robin, the performance was addressed in the parts of the decision that covered the need for the audience to recognise the work.

    There’s a hint in your question that you may be thinking that it is necessary to have criticism of the work of which fair use is being made. That is not required, nor is any mention of the work, its artist or anything specific about it. It just happens to be so for the lyrics in this particular case. I do expect direct criticism of the work to result in a stronger fair use argument, though.

    Note that I’m not a lawyer, merely someone who has read many decisions involving fair use.

  • http://backseatdriving.blogspot.com/ Brian Schmidt

    Maybe this has been covered elsewhere, but using “Expelled” for the legal challenge seems like a strategic choice to emphasize that fair use is not exclusively a project of the left. That’s good strategy when most judges are Republicans.

  • Robin Levett

    @James Day:

    I hear what you say, but disagree; if you are defending fair use of a copyrighted work on the ground that you are criticising it, then you must be criticising the copyrighted work. Is that not self-evident? Or am I completely in the dark?

  • http://www.andrewweir.co.uk The Weir

    @Beowulff

    Excellent, it’s nice to agree on a few things! I would say that politics and belief collide because a person’s beliefs will impact their politicking.

    That being said, however, religion is too often a set of rules, regulations and expectations that separate people and their faith.

    I reflected on my comments and realised that I really came at this from the wrong angle – it’s about the defending of the fair use right, not the mixing of belief and politics. Thanks for letting me have the rant tho!!

    Peace

    W

  • http://metamagician3000.blogspot.com/ Russell Blackford

    As I said over at Pharyngula, I should have charged a fee, since I was pushing the same argument (mainly there and on my own blog) before the Stanford folks went public with it – e.g.: http://metamagician3000.blogspot.com/2008/04/expelled-defended-on-one-point.html

    There was always a powerful argument to defend the use of a brief excerpt of “Imagine” juxtaposed ironically against images that, taken as a whole, expressed hostility to the song’s philosophical and emotional message. I despise everything that Expelled stands for, but this was legitimate commentary, and it is in the public interest for such commentary to be made even of copyrighted material. I applaud the outcome so far.

  • Goatboy

    As someone who is largely ignorant of IP law, can anyone here advise me if there is any requirement for a criticism to at least be coherent (if not correct) for it to considered valid under Fair Use?

    Or can any looney-tune just go ahead and raid Warner Bros’ archives for material to put into their podcast on the Martian/Bunny Rabbit conspiracy to turn good Christian American men gay?

  • Gerry Werthers

    Oooh, I can see how many inches/centimetres this topic is already getting. To me the use of the song “Imagine” did exactly what the producers of the film might’ve wished for. Got a lot more people to see it and talk about it. Yoko, you’ve been punk’d!

  • http://im-from-missouri.blogspot.com/ Larry Fafarman

    Beowulff said (June 2, 2008 8:19 PM) —

    I didn’t see much in the ruling that seems to address the claims of the makers of the movie critically, though.

    Judges are not movie critics. The judge’s two thumbs up were for fair use, not the movie.

    Furthermore, the song ‘Imagine’ doesn’t seem to be used to critique the song, but to critique PZ Myers and/or his ideas.

    It is still commentary and as such is protected by the First Amendment.

    The argument that absence of religion leads to dictatorships did not absolutely require ‘Imagine’ to be made either

    “O reason not the need! Our basest beggars
    Are in the poorest thing superfluous.
    Allow not nature more than nature needs,
    Man’s life is as cheap as beast’s.”
    – Shakespeare’s “King Lear”

  • http://bestnarutoepisodes.com Naruto Episodes

    This is why the U.S.A. is “Sue Happy”. Everyone is always sueing for something stupid! I don’t know why Yoko Ono couldn’t just say something like “if you use a clip of mine, let me get 5% of what you make off the movie”. That would make much more sense. Besides, showing clips from another film that others haven’t seen would just inspire that person to watch that movie where the clip came from. It would make more sense if you asked me… but I can’t do anything about it.

  • http://blogwindowsxp.com Windows XP

    i totally agree with you, Naruto Episodes. why don’t people think things through before they just start sueing others? if there isn’ a need to fight some one for stealing penny, then why sue some one for taking a 15 second clip from your film?

  • James Day

    Robin, yes, if the reason for the use is criticism of the work then it needs to be discussing the work.

    Fair use is not confined to criticism so in this case it’s entirely fine to use the performance to aid in recognising the work. In another context the performance could be used fairly along with direct criticism of it’s repetitiveness that could be considered to assist in allowing an audience to concentrate on the lyrics.

    In the case of photographs or posters it’s been found to be entirely fine to use them simply as background images for decorative purpose in a book related to them. No criticism of the individual images required at all. Also fair use to include small versions of images in visual search engines simply to let people recognise whether the image is the one they are looking for.

    Fair use is very broad and if you’re thinking in fair dealing terms that could perhaps be misleading you. The best remedy is reading lots of fair use decisions.

  • Gerix

    So tell me again why “Intelligent Design” should be considered seriously…
    and why any intelligent person shoud assist them in spreading their propaganda?

  • poptones

    You cannot say “this is worth helping because I find it to be truth.” The constitution doesnt afford those who speak some version of truth the right to speak – it affords everyone the right to speak THEIR truth.

    If you cannot understand and respect that, you do not understand the Constitution of the U.S. – and arguably cannot respect those who have died defending it.

  • John David Galt

    @Windows XP:
    An artist who creates a work at least partly to express deeply held political/religious/idealistic beliefs is naturally going to disapprove of that work being reused in an expression of opposing beliefs.

    Some artists believe they have a moral right to veto any such use.

    I disagree with that theory on three grounds, all unrelated to the content of either the song or the movie.

    First, all art is derivative, so if you allow copyright to last forever, it’s not too long before it starts reducing, rather than increasing, the rate of new works being published (which is, after all, the express purpose for which the Constitution authorizes intellectual property rights).

    Second, artists don’t really create anything; they merely discover (read Spider Robinson’s Melancholy Elephants if you need an explanation).

    And third, the freedom to make political statements should certainly always trump any IP.

    (For what it’s worth, I think both the song AND the movie are stupid, and whenever the song comes on I feel the need to belt out: “Imagine all the monkeys, flying out my butt!”)

  • http://www.imaginaryplanet.net/weblogs/idiotprogrammer Robert Nagle

    To John David Galt:

    You say that artists don’t create but discover. I realize that we are using metaphorical language, but I wanted to point out that this may be limited only to the visual arts. As a fiction writer, a lot of my stories are original and unique; to put it in another way, I doubt that anyone would end up creating a story even remotely similar to what I have written.

    If I had never lived, these stories (and these prose versions) would never exist. I don’t claim that the creative powers of artists are superhuman and never derivative. But you should keep in mind that principles of one genre or medium don’t apply towards others.

  • http://tvportali.net Canlı tv

    I have a question. What is your take on Expelled use of the XVIVO film “Inner Life of a Cell”? Is that fair use or is that plagiarism?