Expert attacks Yoko v. Expelled suit

Peter Friedman, who teaches at the Case Western Reserve University's School of Law, says on the "What is Fair use?" blog,

My understanding is that 15 seconds of the song are used in the film. Quite plainly, Ono does not agree with the filmmakers' point of view. Simply to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users' message objectionable. That certainly seems to be the conclusion of the Stanford Fair Use Project, which has taken on the filmmakers' defense in Ono's lawsuit. Their description of the use of the song in the film seems to confirm my own suspicions regarding the legitimacy of the fair use defense in this case:

The clip of “Imagine,” which is audible for approximately 15 seconds, is used in a segment of the documentary in which the film’s narrator and author Ben Stein comments on statements made by Myers and others about the place of religion. In the documentary Stein says: “Dr. Myers would like you to think that he’s being original but he’s merely lifting a page out of John Lennon’s songbook.” This is followed by an audio clip of Lennon’s song “Imagine,” specifically, the lyrics “Nothing to kill or die for, And no religion too.”

The movie makes both verbal and symbolic (the visual scenes in the movie) commentaries about the song.
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Meanwhile, many Darwinists mistakenly think that Yoko's suit is a slam-dunk shoo-in and have vilified the producers of "Expelled" in the worst terms. Josh Rosenau, who is on the staff of the National Center for Science Education, said, "Expelled steals from the dead." Another Darwinist said of the temporary restraining order, which might be routine in such lawsuits, "Justice is swift, for some of us anyway." The TRO is in effect only until the hearing on a motion for a preliminary injunction, now scheduled for May 19, and the TRO allows theatres currently showing the movie to continue showing it. However, the comments in a comment thread on Sleazy PZ's Pharyngula blog show that even many people who dislike "Expelled" think that Yoko Ono's lawsuit is wrong.

As I said before, IMO Footnote 14 of Campbell v. Acuff-Rose Music, Inc., 510 US 569, is a key precedent here:

Footnote 14:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required. (emphasis added)

My other articles about the Yoko suit may be found by clicking on the "Yoko Ono lawsuit" post label below (this post label is also in the sidebar).
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