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My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Thursday, April 24, 2008

Yoko Ono sues "Expelled" producers over "Imagine" song

A news article reported,

NEW YORK (Reuters) - John Lennon's sons and widow, Yoko Ono, are suing the filmmakers of "Expelled: No Intelligence Allowed" for using the song "Imagine" in the documentary without permission.

Lennon recorded the song in 1971 and in 2004, Rolling Stone magazine ranked it No. 3 on their list of the 500 Greatest Songs of All Time, according to the lawsuit.

Ono, her son Sean Ono Lennon, and Julian Lennon, John Lennon's son from his first marriage, along with privately held publisher EMI Blackwood Music Inc filed suit in U.S. District Court in Manhattan seeking to bar the filmmakers and their distributors from continuing to use "Imagine" in the movie.

They are also seeking unspecified damages.

Another news article reported that Ono complained that bloggers accused her of "selling out" to the "Expelled" producers. An earlier article about the dispute -- published before the announcement of the lawsuit -- is here.

The "Expelled" producers have a good fair-use case against Ono. The film uses under 25 seconds of the song. The Stanford Law School's Fair Use Project says,
.
STANFORD, Calif., February 27, 2007—The Fair Use Project of the Center for Internet & Society at Stanford Law School announced that it has teamed with Media/Professional Insurance and leading intellectual property attorney Michael Donaldson to provide critical support for documentary filmmakers who rely on the “fair use” of copyrighted material in their films. . . .

“Documentary filmmakers who use copyrighted materials in their work under the ‘fair use’ doctrine of copyright law have come under tremendous pressure in the face of demands for huge licensing fees from copyright holders and overly-aggressive enforcement of copyrights,” explained Lawrence Lessig, founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford Law School.

“The mere threat of a lawsuit can keep an important film on the shelf for years,” Lessig said. “This has been a tremendous problem for documentarians because their films depend on the inclusion of copyrighted material they seek to comment on, discuss, and contextualize.”

In order to help solve this problem, the Fair Use Project has announced that it will agree to provide pro bono legal representation to certain filmmakers who comply with the Documentary Filmmakers’ Statement of Best Practices in Fair Use [see below] published by the Center for Social Media at American University (www.centerforsocialmedia.org/fairuse). Accordingly, the filmmaker will have counsel in place prior to the release of the film should the filmmaker face claims of copyright infringement. Media/Professional, in turn, will provide insurance coverage against copyright infringement liability in the event the filmmaker proves unsuccessful in defending the claim. In situations where the Fair Use Project is not in a position to promise pro bono representation, Donaldson and other leading intellectual property attorneys will be available to defend claims at favorable rates.

Documentary Filmmakers’ Statement of Best Practices in Fair Use says (page 6 of pdf file),

QUOTING COPYRIGHTED WORKS OF POPULAR CULTURE TO ILLUSTRATE AN ARGUMENT OR POINT

DESCRIPTION:
Here the concern is with material (again of whatever kind) that is quoted not because it is, in itself, the object of critique but because it aptly illustrates some argument or point that a filmmaker is developing — as clips from fiction films might be used (for example) to demonstrate changing American attitudes toward race.

PRINCIPLE: Once again, this sort of quotation should generally be considered to be fair use. The possibility that the quotes might entertain and engage an audience as well as illustrate a filmmaker’s argument takes nothing away from the fair use claim. Works of popular culture typically have illustrative power, and in analogous situations, writers in print media do not hesitate to use illustrative quotations (both words and images). In documentary filmmaking, such a privileged use will be both subordinate to the larger intellectual and artistic purpose of the documentary and important to its realization. The filmmaker is not presenting the quoted material for its original purpose but harnessing it for a new one. This is an attempt to add significant new value, not a form of “free riding” — the mere exploitation of existing value.

Yoko Ono, despite getting $20 million a year from John Lennon's royalties, is extremely tightfisted about his copyrights. She is also in a dispute over the copyright of a film about John Lennon.
.

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7 Comments:

Anonymous Anonymous said...

>>>their films depend on the inclusion of copyrighted material they seek to comment on, discuss, and contextualize.”

But from what I understand the film does not comment on, discuss, or even contextualize the song. Curiously, a song that endorses atheism is being used as a song for a better world that the movie seeks to promote (wrongly, but still) in which IDiot hacks aren't discriminated against. Given the statement quoted above, the fair use doctrine would not apply.

Manuel

Thursday, April 24, 2008 11:32:00 AM  
Blogger Jim Sherwood said...

A Darwinite brayed, "We must call
On a lawyer, to desperately bawl
For an end to free speech
When it threatens to breech
Our dogma! Or Darwin will fall!"

Thursday, April 24, 2008 1:11:00 PM  
Blogger Larry Fafarman said...

Anonymous said...
>>>>>>"their films depend on the inclusion of copyrighted material they seek to comment on, discuss, and contextualize.”

But from what I understand the film does not comment on, discuss, or even contextualize the song. <<<<<<

I believe that the movie plays the words "and no religion too" during a scene of Communist China or Stalinist Russia. This is actually a deliberately unclear nonverbal commentary on the significance of those words in relation to the scene in the movie -- the filmmakers leave it up to the viewer to determine that significance. For the filmmakers to have said in the movie, "we played these words during this scene of the movie because . . ." would have spoiled the effect. There are different interpretations of what the words could mean in the context of the scene -- e.g., the song says that having no religion is good but maybe having no religion can lead to bad things. "Expelled"s use of "Imagine" could even be considered a parody. Or maybe there is no meaning and the song just spices up the movie with a piece of pop culture. Similarly, trying to make an "official" interpretation of a political cartoon can spoil the cartoon. Consider, for example, the cartoon shown here -- trying to find an "official" interpretation spoils it. It can be interpreted as a swipe at Darwinists, a swipe at anti-Darwinists, or a swipe at the indecision of the Kansas Board of Education.

I think that the kind of commentary that you are talking about is covered by another fair use principle in the Documentary Filmmakers' Statement of Best Practices in Fair Use:

ONE: EMPLOYING COPYRIGHTED MATERIAL AS THE OBJECT OF SOCIAL, POLITICAL OR CULTURAL CRITIQUE:

DESCRIPTION:
This class of use involves situations in which documentarians engage in media critique, whether of text, image, or sound works. In these cases, documentarians hold the specific copyrighted work up for critical analysis.

The segment of "Imagine" in "Expelled" is less than 25 seconds and I have heard estimates as low as 15 seconds. IMO, Yoko Ono has no case. IMO this little addition to the movie was clever and now the "Expelled" producers are getting hell for it. I propose a boycott of John Lennon and Beatles stuff until Ono calls off her suit.

The "Expelled" producers were also harassed by XVIVO about the imitation of the XVIVO video. Harvard holds the copyright and XVIVO might not even be a co-holder of the copyright. Following the principle that often the best defense is an offense, the "Expelled" producers sued XVIVO for defamation.

Thursday, April 24, 2008 3:16:00 PM  
Anonymous Darwin B. Leaver said...

That Yoko's the greatest of dames!
She's filed a suit, for she aims
At expelling EXPELLED
From view! It's held
That it undermines Darwinist claims!

(My friend Leaver isn't very bright; but at least he knows that Darwinism has been largely discredited on the intellectual and scientific levels. So the last hope of the Darwinists lies in EXPELLING dissenters, filing lawsuits, and inhibiting free speech. Posted by his ghostwriter, Jim Sherwood.)

Thursday, April 24, 2008 3:36:00 PM  
Anonymous Anonymous said...

>>>My friend Leaver isn't very bright; but at least he knows that Darwinism has been largely discredited on the intellectual and scientific levels

It has? Gimme some of what you're smoking 'cuz it's evidently great stuff.

Thursday, April 24, 2008 7:09:00 PM  
Blogger Jim Sherwood said...

One of the reasons I may see EXPELLED a third time is that I'd like to see the Darwinist "actors" therein again, and listen to their mostly-absurd pronouncements. Christopher Hitchens is listed in the end-credits, but I guess he didn't make the movie: I didn't see him.

Or was he that drunk who was barfing under a lab table? (Just kidding.)

A Darwinist, Hitchens, while drunk,
Exclaimed, "That Stein is a skunk.
We have to EXPEL
Those scientists. Hell,
If thinking's allowed, we'll be sunk."

Friday, April 25, 2008 2:51:00 PM  
Anonymous Anonymous said...

Yoko Ono, heirs and BMI are NOT suing to stop the continued distribution of the film, but to stop it until use of the song and its performance by Lennon is removed. There is a huge difference. That the song is given "credit" at the end does imply that permission was given, and it wasn't. It was sneaky and cheeky of the producers, perhaps even calculated. The Ono suit is simply asking for a composer and performers rights be respected and/or compensated. To take the argument to a higher ideological or religious level is a mistake.

Friday, May 23, 2008 6:11:00 AM  

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