Lennon v. Premise Media Corp.
S.D.N.Y., June 2, 2008, No. 08cv03813
Slip Opinion
The District Court for the Southern District of New York denied Yoko Ono Lennon’s motion for preliminary injunctive relief in a case involving Premise Media Corp.’s use of a fifteen-second clip of the song “Imagine” in Expelled, its controversial documentary about intelligent design. The court found that the plaintiffs failed to show a clear likelihood of success on the merits — required to obtain preliminary injunctive relief — because the defendants were likely to succeed in asserting an affirmative defense of fair use.
The court looked to the fair use factors articulated in § 107 of the Copyright Act of 1976: “(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.” Although Expelled is commercial in nature, the court found that the movie’s use of “Imagine” is “highly transformative, and not merely exploitative.” According to the court, the pairing of the lyrics and accompanying music to a sequence of images provided “a layered criticism and commentary of the song.” The court concluded, therefore, that defendants were likely to prevail on their fair use defense.
Expelled is a feature-length film that, according to one producer, “examines the scientific community’s academic suppression of those who ask provocative questions about the origin and development of life.” It is narrated by actor and writer Ben Stein, who graduated as valedictorian from Yale Law School in 1970, and who recently has become a proponent of Intelligent Design theory.
The filmmakers of Expelled used fifteen seconds of John Lennon’s song “Imagine” in which the Lennon sings, “Nothing to kill or die for / And no religion too,” paired with Cold War-era images and a picture of Stalin. The court found that the combination of the song and the images “express the filmmakers’ view that the song’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 naiveté of John Lennon’s views.” Citing Campbell v. Acuff-Rose Music, Inc., the court held that this use was transformative because it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
The court then ruled that the balance of factors weighed in favor of finding fair use. Although “Imagine” is a creative work and the defendants’ use of the song was “at least partially commercial in nature,” the transformative use of the song, the court found, limited the weight of the other factors. The length and substantiality of the song clip used in the movie, the court noted, also weighed in favor of finding fair use. Finally, the court ruled that plaintiffs failed to show that allowing the defendants’ use of the song would usurp the market for licensing the song for non-transformative purposes.
Lawrence Lessig characterizes the decision as “another great success” for the Stanford Fair Use Project, which is representing the defendants in the action.
Relevant Court Documents
Complaint and Motion for Preliminary Injunction (Hosted by the Wall Street Journal)
Premise's Reply (Hosted by the Stanford Center for Internet and Society)
Further discussion of the case can be found at
Wall Street Journal Law Blog
Hollywood Reporter Esq.
Law.com
Update (October 7, 2008):
Plaintiffs dropped this suit last month.