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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.

Tuesday, May 13, 2008

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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1 Comments:

Anonymous Anonymous said...

(I don’t usually post anonymously, but I tried once before to post with a name and it didn’t seem to work, so I’m trying again)

Larry,

1. You are going way too far with this parody/satire thing, at least inasmuch as it pertains to this case (if you’re fascinated by it as a separate subject, by all means, go wild). Parody as it pertains to music, as you’ve mentioned, means the new usage must somehow imitate the original. As the filmmaker’s used an unaltered recording of the song, this is clearly not parody.

As for satire, that’s also a big stretch. You make it sound in your analyses as though the makers of “Expelled” discovered this amazing new way to juxtapose a series of images with music (a song, in this case) to create a satirical or ironic effect, but the fact is, this is done ALL THE TIME in film, both documentary and fiction. If the judge calls this Fair Use, songwriters, lyricists and composers may as well take their copies of US Code Title 17 (Copyrights), rip them up and use them to line their hamster cages, ‘cause that’s all they’ll be worth. I really don’t see a judge ruling that filmmaker’s rights will henceforth always trump songwriters and composer’s rights.

2. The case you cite, Campbell v. Acuff-Rose Music, Inc., is not a key precedent here because you are comparing apples to grapefruits. That was a case of musicians/composers using the copyrighted work of another musician/composer to create a new musical composition. This is a case of a filmmaker using copyrighted music within their film. They have not created any new ‘entity’ through its use. In fact, please find us all a Fair Use case that actually is similar to this where the judge ruled for Fair Use of music for the defending filmmaker. Go on, try.

3. I wish you and too many others out there would stop basing your analyses of this case solely on the use of the lyrics. As a musician and composer myself, it’s really starting to tick me off that people are too often using the word “song” to mean “words”. Music and words are not the same thing. At the very least, music means melody (you know, melody? Everybody hum along with me … C C C … E E .. D), and in this case Yoko Ono holds copyright on both those things. Any analysis of Fair Use must include whether the use of the even just the melody was fair. Since the film neither comments on nor criticizes the music, and since music cannot, by its very nature, comment on nor criticize the series of images it is connected with, the use of MUSIC here does indeed fall into the category of “background music”. Fact is Larry, the filmmaker’s did not NEED to use the MUSIC to make their point. They CHOSE to, because to watch that fifteen second montage without some music would be pretty boring. So the use of music (any music) enhanced their film. If my composition enhances your commercially released film, why should I not be compensated for it? Why should claiming Fair Use give filmmaker’s a blanket pass to steal composer’s music?

Lastly, and following along from that, no one can defend the position that the filmmaker’s HAD TO use “Imagine” in order to make their film about academic freedom.

And that being so, their 1st amendment rights, their rights to Freedom of Speech were never denied. They had the right to make their film without stealing someone else’s copyrighted work. And they should have. If now they have to pay for their error of judgment (whether willful or out of ignorance), so be it.

Thus, this is clearly not a case of Fair Use of the music. If y’all want to continue arguing about use of the lyrics, be my guest. Just please stop using the word “song” as a synonym for “lyrics”. At least have the decency to replace the word “song” in your analyses with “words and music” (or be more explicit that you are in fact only referring to the lyrics by using “the lyrics of the song” instead of just “the song”) before you try to “prove” this should be considered Fair Use.

Thank you and good night.

Sunday, May 18, 2008 12:01:00 PM  

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