In a major victory for proponents of Fair Use, the makers of the conservative-leaning Intelligent Design documentary, EXPELLED: NO INTELLIGENCE REQUIRED, prevailed over Yoko Ono in US Federal Court on Monday. At issue: whether the filmmakers could use John Lennon's "Imagine" in a scene for the film without permission.
In his decision, judge Sidney Stein ruled that the filmmakers' 15-second use of the song was legal under the fair use doctrine because the use is actually commentary on the song itself. From the WSJ's Law Blog, who have been following the case closely:
"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.”
In batting down Ono’s PI motion, Judge Stein...said the plaintiffs failed to show “a clear likelihood of success on the merits” ... — 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."
In reaching his verdict, Stein cited the landmark copyright case Blanch v. Koons, wherein the artist Jeff Koons used a portion of a photograph by Andrea Blanche for a new painting. The judge in that case ruled that Koons' painting was indeed a "transformative work".
The WSJ Law Blog notes that a second case has been filed in state court by EMI, which holds the master rights to Lennon's recording. EMI claims that they have only licensed "Imagine" for use in a single film, 1984's THE KILLING FIELDS (although it's been bastardized by David Archuletta all season on American Idol) and that the use of the song in EXPELLED harms the company's ability to license the title.
The state court involving the original master recording may be more of a challenge for the filmmakers, as the WSJ Law Blog noted in an earlier article:
"Judge Lowe asked Falzone why it was necessary to use Lennon’s actual performance of the song, rather than, say, having Stein say the lyrics himself or flashing the lyrics on the screen. To this, Falzone gave what we thought was a compelling and novel reply. Lennon’s performance, said Falzone, triggers a specific emotional response in the viewer’s mind — i.e. “Maybe Lennon’s right; maybe the world would be better off without religion” — and it’s that response that the film, and its use of “Imagine,” seeks to criticize."