Defense briefs in "Imagine" suits

Time is running out for decisions on whether to issue preliminary injunctions in the lawsuits against use of the song "Imagine" in "Expelled." I was sure that there would be decisions this week, but this week has come and gone. If the temporary restraining orders in the lawsuits apply to Canadian theatres, then the judges need to either poop or get off the can very soon because the movie is scheduled to open in Canada on June 6 and the theatre owners need to know very soon. How in the hell can the theatres even advertise "Expelled" as a coming attraction if they don't know if it can open on schedule.

While waiting for the decisions of the courts, I decided to while away the time by commenting on the defense briefs. The federal-court defense brief is here and the state-court defense brief is here. Many of the arguments are the same in both briefs. I will just comment on the state-court brief here -- I may comment on the federal-court brief later.

The state-court defense brief says,
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Plaintiffs impliedly acknowledge the First Amendment necessity of the fair use defense by asserting fair use "subsumes and supplants independent First Amendment analysis." Pl. Memo at 9 n. 3. This is simply another way of saying that fair use protection is essential to keep common law copyright protection from triggering First Amendment concerns. (page 15 of pdf, page 9 of document).

I disagree with both the plaintiffs and the defense here. As for the plaintiffs' statement, there is of course no "independent" First Amendment analysis because that analysis must be part of or incorporated into the fair use analysis. As for the defense statement that fair use protection prevents copyright protection from "triggering" First Amendment concerns, of course attempts to enforce copyright protection trigger First Amendment concerns unless there is blatant market-substitution.

Also, the state-court defense brief has a lot of argument that "Expelled"s use of "Imagine" is "transformative." However, to me the term "transformative" means that the borrowed work is altered, and "Expelled" did not alter "Imagine." My interpretation of "transformative" is supported by a footnote in the brief:

In Campbell, the US Supreme Court explained that Sony's presumption of market harm is limited to situations where the secondary work "amounts to a mere duplication of an original" and does not apply to situations where "the second use is transformative." Campbell, 510 U.S. at 591. (footnote, page 23 of pdf, page 17 of document)

The plaintiffs have their own strange meaning of "transformative":

Plaintiffs contend transformation turns on whether using "copyrighted material was necessary to the asserted purpose of criticism [or] comment" and go on to observe that it was not strictly necessary to use the clip of Imagine in the Film.(page 19 of pdf, page 13 of document)

"Not strictly necessary"? King Lear said in Shakespeare's play,

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. But, for true need--
You heavens, give me that patience, patience I need.
You see me here, you gods, a poor old man,
As full of grief as age, wretched in both.

The state-court defense brief says,

Plaintiffs also complain the public is confused about whether Imagine was licensed for use in the Film, and this confusion is causing harm to its reputation based on accusations from internet bloggers that Plaintiffs "sold out" the legacy of John Lennon by permitting it to be used in the Film . . . . But any such "confusion" was the result of false accusations by internet bloggers, which was corrected in any event. See McMullan Dec. Ex. A (Wall Street Journal story stating filmmakers did not have permission to use the song). Any harm those false accusations created was inflicted by the authors of them, not Defendants, and Plaintiffs fail to explain how the injunction they request would undo that harm in any event. It is simply not Defendants' fault that bloggers do not understand the law permits some unlicensed uses of copyrighted material, and this fact should neither undermine Defendants' rights nor support an injunction pending the resolution of those rights in this dispute.(pages 27-28 of pdf, pages 21-22 of document)

The plaintiffs did not claim that the false accusations by the internet bloggers were the sole cause of alleged harm to reputation -- the plaintiffs also claim that listing "Imagine" in the credits at the end of the movie also gives the false impression that permission to use the song was granted.

The plaintiffs' claims of damage to reputation might have some validity if protecting reputations of songs and songwriters were one of the purposes of copyright law, but as I show here and here, that is not one of the purposes of copyright law.

As for the statement "It is simply not Defendants' fault that bloggers do not understand the law permits some unlicensed uses of copyrighted material," there is a strong possibility that these unscrupulous BVD-clad bloggers were aware of this but just didn't care whether their accusations were true or not. Congress is poised to grant the "reporter's privilege" to these same unscrupulous BVD-clad bloggers.

Also, if the courts accept this argument about alleged damage to reputation, that would mean that the courts accept the idea that giving permission to use a copyrighted work can properly be interpreted as endorsement of the borrowing work, and IMO that is a very bad idea.
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