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Location: Los Angeles, California, United States

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.

Friday, May 02, 2008

Legal analysis of Yoko Ono's suit against "Expelled"


"Does anyone know the name of the law that applies to Yoko Ono's copyright-infringement lawsuit against the producers of 'Expelled'? Anyone? It's called the fair use law. Can anyone think of a good reason why the 'Expelled' movie's use of the song 'Imagine' should not be considered fair use? Anyone? Anyone? The answer is that there is no good reason."

-- "Expelled"s star Ben Stein as the boring economics teacher in the movie "Ferris Bueller's Day Off." "Anyone?" "Anyone?" when he lectured was echoed by "Bueller?" "Bueller?" when he called the roll. "Anyone? Anyone? Bueller?" has become a popular expression.

============================================================

I now realize that "symbolic speech" is the correct legal term for how "Expelled" uses the song "Imagine." The courts recognize symbolic speech as being speech for purposes of the First Amendment's free speech clause. It cannot be claimed that "Expelled" does not comment about the song just because the commentary is nonverbal. Correction: I have learned that the movie makes a verbal comment about the song.

Also, the complaint of Yoko Ono et al. -- at the bottom of this webpage -- does not even mention the fair use law, 17 USC §107, let alone try to show that this law is not satisfied by "Expelled"s use of "Imagine." Since the plaintiffs are essentially claiming that the "Expelled"'s use of "Imagine" does not satisfy the fair use law, then (1) either the plaintiffs should amend their complaint with arguments of how the fair use law is not satisfied or (2) the case should be dismissed because of lack of jurisdiction and/or failure to state a claim upon which relief can be granted.

The fair use law includes the following provisions:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(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.

As I noted before, this is not a list of tests that must be passed but is only a list of factors that must be considered. Also, these factors are very general and subject to broad interpretations.

Here are my evaluations:

(1) the purpose and character of the use --

Symbolic or nonverbal commentary about song. The movie leaves it up to the viewers to decide for themselves the significance of the song's words in relation to the accompanying scenes of the movie. See correction above.

-- whether such use is of a commercial nature or is for nonprofit educational purposes

The movie is commercial rather than nonprofit, but that is far from being a fatal defect under the fair use law.

(2) the nature of the copyrighted work;

As a song that asks us to "imagine no possessions," it is arguably not even copyrightable. I go into a more detailed analysis about this in a previous post.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

This one's easy -- the movie uses only about 15 seconds out of a song of about 3 minutes in length.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Contrary to the plaintiffs' claims, the movie's use of the song does not imply approval or endorsement of the movie by the song's copyright owners. There should be no significant effect on the song's value or potential market.

The statement by some bloggers that Yoko Ono “sold out” to the “Expelled” producers — which BTW is a false statement which was even retracted — is not grounds for denying fair use. The defendants have an even better claim that they are being defamed by the lawsuit.

Also, no permission or request of permission is required for fair use.

I can’t find a copy of the complaint that Capitol Records and EMI Records filed in a separate action in a New York state court. A news article says that their claims are under New York state law, and I don't see how those claims can be applied outside the state of New York. The news article says,

On the same date, EMI Records Ltd. and Capitol Records LLC filed suit against the same defendants in the Supreme Court of the State of New York, alleging violation of their rights in the sound recording under New York state law.

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24 Comments:

Anonymous Voice in the Wilderness said...

> Also, the complaint of Yoko Ono et al. -- at the bottom of this webpage -- does not even mention the fair use law <

Again Farfromsane demonstrates his ignorance of legal concepts. The plaintif has no obligation, nor reason to give credence to far out interpretations that the defendant may want to push in their defense. Since the fair use law would only be the wildest of defenses, the plaintif has no reason to give it any notice. Let the defense make fools of themselves, as you have always done. Then you can claim that it was "crooked judges".

Friday, May 02, 2008 6:57:00 AM  
Blogger Larry Fafarman said...

>>>>>> Since the fair use law would only be the wildest of defenses, the plaintif has no reason to give it any notice. <<<<<<

What other defense do you suggest, idiot? The only other defenses I can think of are (1) the copyright has expired and (2) the plaintiff does not own the copyright, but those defenses do not apply here. Even a claim that the work is not copyrightable could be considered to be part of the "nature" of the work (factor #2 of the fair use law). The fair use law is so basic that it often governs claims of copyright infringement as well as defenses.

Friday, May 02, 2008 1:54:00 PM  
Blogger Jim Sherwood said...

Your "Imagine there are no copyrights" stanza is pretty good, Larry, so Ben Stein should start singing it if Yoko Bozo Oh-No-No keeps up with this suit. It should be easy to make a laughing stock out of the dame.

Friday, May 02, 2008 2:07:00 PM  
Blogger Jim Sherwood said...

Judge Jones is rumored to be concerned about the situation:

One Jones, who sat on a bench,
Declared, "That Yoko's a wench
Who longs for more cash
For her gigantic stash!
Too bad that her suit has a stench,

Or I'd love to try it in court,
So we'd bash that Ben for a tort.
That goddamn ID
Has defied my decree,
And it's galloping on, they report."

Friday, May 02, 2008 4:00:00 PM  
Anonymous Voice in the Urbanness said...

> What other defense do you suggest, idiot? <

Don't you understand, Cretin, that dreaming up a defense is the job of the defense? It is not the job of the plaintif to suggest straw men and then bat them down.

I am not writing Larry's material under an assumed name just to have something easily disputed. The dimwit actually believes the crap that he posts here.

Friday, May 02, 2008 6:22:00 PM  
Anonymous Hector said...

This title is misleading. There is no analysis by anyone who knows anything about law.

Saturday, May 03, 2008 7:37:00 AM  
Anonymous Anonymous said...

John Lennon wrote the song and ownership passed to Yoko and Sean. How does anyone else have any right to publish in any other medium his work without permission? 'Expelled' should not be using John's work to slam him without his or his estate's permission. You may not like Yoko but she has the right to protect his interests as she sees fit. She ran his life when he was alive and why not now? MAN

Saturday, May 03, 2008 8:50:00 AM  
Blogger Jim Sherwood said...

It's funny I can't find any evidence that Yoko sued Albert Goldman, who wrote in his biography of Lennon (1988) that Lennon was in the habit of mugging sailors with other Beatle accomplices, before the group made a lot of money. See The Lives of John Lennon, p.106-7. One of John's partners as a mugger was allegedly John Best, who was a Beatle at the time.

So it looks as if Yoko is more interested in money, or else in pleasing the Darwinists, than she is in John's interests.

A good line for the song might be "Imagine there are no muggers..."

Saturday, May 03, 2008 11:50:00 AM  
Blogger Larry Fafarman said...

Jim Sherwood said...
<<<<<<
One Jones, who sat on a bench,
Declared, "That Yoko's a wench
Who longs for more cash
For her gigantic stash!
Too bad that her suit has a stench
<<<<<<<

IMO Judge "Jackass" Jones would not consider Yoko's suit to have a "stench" (he is such a skunk himself that he couldn't even smell a stench from others). So I think that "Jones" in the limerick should be changed to "judge" or "Stein" (the name of the judge assigned to Yoko's case -- by coincidence the same last name as Ben Stein's).

>>>>> It's funny I can't find any evidence that Yoko sued Albert Goldman, who wrote in his biography of Lennon (1988) that Lennon was in the habit of mugging sailors with other Beatle accomplices, before the group made a lot of money. <<<<<<

One of the charges in Yoko et al.'s official complaint filed in the court is that Darwinist bloggers have accused her of "selling out" to the "Expelled" producers. But there is nothing in the fair use law that says that the use of the copyrighted material must be favorable, or that public reaction to the use must be favorable towards the copyrighted material. Indeed, a common defense against charges of copyright infringement is that the use is satire, which is often not favorable towards the copyrighted material. Anyway, so far I have seen no evidence that the Darwinists are trying to organize a boycott of John Lennon and Beatle stuff, so I don't see what Yoko is worried about.

Saturday, May 03, 2008 1:26:00 PM  
Blogger Jim Sherwood said...

Actually John Lennon's partner as a mugger was Pete Best, who was a Beatle at that time; according to Lennon's biographer Albert Goldman: not "John Best," as I wrote.

Saturday, May 03, 2008 2:20:00 PM  
Blogger Jim Sherwood said...

Points taken, Larry. But it's Jones who issued a "decree" against "ID," and who thus would like to "bash" Ben. The idea is that he'd love to try the case, if he ever had a chance. I hope that Judge Stein doesn't have a similar prejudice against Ben Stein. But you never know.

By the way, Judge Jones said before the Dover trial that he might watch "Inherit the Wind" again, for "background information." The movie is a very distorted, pro-Darwinist, Hollywood misrepresentation of the Scopes Trial. What sort of background information can be provided by a Hollywood movie that is basically hoked-up fiction?

Saturday, May 03, 2008 2:50:00 PM  
Blogger Jim Sherwood said...

Actually the judge's comments about "Inherit the Wind" were evidently made during the trial, and were slightly different than I remembered them. On Oct 16, 2005, the Philadelphia Inquirer reported, pg.B1:

"Jones says he plans to watch the movie again, soon.

'It would help put things in historical context,' he said, 'I don't know if it would be helpful to the decision I have to make.' "

Judge, I don't think that Hollywood movies are a source of "historical context."

Saturday, May 03, 2008 3:50:00 PM  
Blogger Larry Fafarman said...

Jim Sherwood said...
>>>>> Points taken, Larry. But it's Jones who issued a "decree" against "ID," and who thus would like to "bash" Ben. <<<<<<

Sorry, Jim, I didn't realize that the second limerick is a continuation of the first.

Saturday, May 03, 2008 3:53:00 PM  
Blogger Larry Fafarman said...

Voice in the Urbanness said...
>>>>>>> What other defense do you suggest, idiot? <

Don't you understand, Cretin, that dreaming up a defense is the job of the defense? It is not the job of the plaintif to suggest straw men and then bat them down. <<<<<<<

OK, dunghill, I will elaborate.

I wouldn't expect the plaintiffs to mention fair use factors that are unfavorable to them under the fair use law (17 USC §107), but I would expect them to mention incontrovertible fair use factors favorable to them, e.g., the movie is commercial as opposed to non-profit educational, the song is copyrighted, the movie did not critique the song (the plaintiffs of course should not mention that there is symbolic or nonverbal commentary), etc.. That would at least show that they have some understanding of copyright law and that this is not just a frivolous lawsuit that is intended just for the purposes of harassment and defamation.

Also, ViU, regardless of whether or not the plaintiffs' complaint should mention or discuss the fair use law (a question which I think is debatable), your statement that "the fair use law would only be the wildest of defenses" is just plain wrong. This law is just so basic to the case that I think that the judge would be obligated to bring up this law sua sponte if none of the parties brought it up.

Anonymous said...
>>>>> John Lennon wrote the song and ownership passed to Yoko and Sean. How does anyone else have any right to publish in any other medium his work without permission? <<<<<<

It's something called "fair use."

Hectoring Hector driveled,
>>>>> This title is misleading. There is no analysis by anyone who knows anything about law. <<<<<

I said that the defendants had a good case, dunghill, and some bigshot attorneys agreed -- all or some of them have agreed to pro-bono the defendants.

And let me remind you, dunghill, that my contention that my smog fee suits belonged in federal courts (California "left the sphere that was exclusively its own" -- from Parden v. Terminal Railway -- by basing the fee entirely on the state's special status under federal law and regulations) was vindicated when a former top state auto emissions control official testified in state court that the fee required the approval of the US Environmental Protection Agency! The attorneys who won the case in the state courts originally sued in a federal court and were thrown out -- if they had made my argument, they might have been allowed to stay in federal court! Their federal court judge gave their case a lot of attention -- there was an opinion of maybe about ten pages. In my suit, California did NOT answer my argument, there was NO oral hearing, NO opinion, and not a shred of evidence that that piece of living crap Judge TJ "Mad" Hatter -- or the dunghill appeals court judges who reviewed the case -- ever read a single word of the briefs.

Am I a legal genius or what?

It's about time, boy, that you learned how the courts operate.

How many times do I have to kick the butts of you lousy trolls through the goalposts before you go down and stay down? HOW MANY TIMES?

Saturday, May 03, 2008 4:36:00 PM  
Anonymous Anonymous said...

< Am I a legal genius or what? >

"What" -- obviously.

Saturday, May 03, 2008 5:07:00 PM  
Anonymous Michael said...

Yoko, really doesn't have much of a case, and it appears it's highly unlikely she would win before a judge but would have a better chance in front of a jury...The "fair use law" is the only defense in the case, and rightfully so...

Saturday, May 03, 2008 7:02:00 PM  
Blogger Larry Fafarman said...

Michael said...

>>>>> Yoko, really doesn't have much of a case, and it appears it's highly unlikely she would win before a judge but would have a better chance in front of a jury...The "fair use law" is the only defense in the case, and rightfully so... <<<<<

Thank you! At last, a commenter here (other than Jim Sherwood) who speaks the truth, except maybe for that stuff about a jury.

Saturday, May 03, 2008 8:39:00 PM  
Anonymous Voice in the Urbanness said...

> Am I a legal genius or what? <

what

> How many times do I have to kick the butts of you lousy trolls through the goalposts before you go down and stay down? HOW MANY TIMES? <

How many times do you have to have your butt kicked before you stop repeating the failed arguments?

We are always kicking Larry's butt. That's why he doesn't like us.

Sunday, May 04, 2008 5:26:00 AM  
Blogger David said...

Larry really should stop pretending he knows anything about the law. Whether Fair Use would apply or not, it's an affirmative defense. A complaint does not need to plead around affirmative defenses. It doesn't need to mention factors which are favorable or unfavorable. It's simply irrelevant to a complaint.

Indeed, a common defense against charges of copyright infringement is that the use is satire, which is often not favorable towards the copyrighted material.

Also, you're confusing parody and satire.

Sunday, May 04, 2008 2:33:00 PM  
Blogger Larry Fafarman said...

David driveled,
>>>>>>Larry really should stop pretending he knows anything about the law. <<<<<<<

You lousy pettifogging piece of living *&$%@#, if you have something to say, say it, and don't give me that crap that I don't know anything about the law.

I stated above why I think that it is appropriate for the complaint to state incontrovertible fair-use factors that favor the plaintiffs -- e.g., the movie is commercial, the work used is a copyrighted song -- and you did not even attempt to counter any of my points -- instead you just introduced your high-falutin buzzword "affirmative defense." The law dictionaries are not even consistent in their definitions of the term. One law dictionary says,

n. part of an answer to a charge or complaint in which a defendant takes the offense and responds to the allegations with his/her own charges, which are called "affirmative defenses."

That sounds to me like a counterclaim.

Another law dictionary says,

: a defense that does not deny the truth of the allegations against the defendant but gives some other reason (as insanity, assumption of risk, or expiration of the statute of limitations) why the defendant cannot be held liable

That doesn't sound very "affirmative" to me, unless "affirmative" means affirmation of the truth of the plaintiffs' allegations of fact.

Also, a Temporary Restraining Order issued by the judge said,

Defendants will produce the following documents on or before _May 6_, 2008: . . . (iii) documents and opinions obtained by Defendants in connection with their use of the song "Imagine" in the Movie which support any defense of *fair use* or first amendment; . . .

I don't know if the judge raised the fair-use issue sua sponte, but as I said, it is obvious that this issue is central to the case.

>>>>> Also, you're confusing parody and satire. <<<<<<<

OK, parody can include satire -- parody is the more general term. My dictionary's definition of "parody" includes the term "satirical."

Sunday, May 04, 2008 6:31:00 PM  
Anonymous Anonymous said...

> You lousy pettifogging piece of living *&$%@#, if you have something to say, say it <

You bottom dwelling moron. He did. If you can't answer, cut the *&$%@#.

> and don't give me that crap that I don't know anything about the law. <

Why are facts crap?

> I stated above why I think that it is appropriate for the complaint to state incontrovertible fair-use factors that favor the plaintiffs <

And those silly reasons have been shot down.

I see that you have been chased off the "Questionable Authority" blog with your tail between your legs.

Sunday, May 04, 2008 7:43:00 PM  
Blogger Larry Fafarman said...

>>>>> He did. <<<<<

Wrong, dunghill. Saying that I know nothing about the law is not having something to say. What a stupid fathead.

>>>>> And those silly reasons have been shot down. <<<<<<

Bullshit, you lousy sack of #&*^%. They were never even addressed.

>>>>> I see that you have been chased off the "Questionable Authority" <<<<<<

Yes, dunghill, I was "chased off" by breathtakingly inane comments that only said I was wrong without saying why. Unlike you, I am a busy man and I don't have time to answer such stupid comments.

Sunday, May 04, 2008 9:52:00 PM  
Blogger David said...

You lousy pettifogging piece of living *&$%@#, if you have something to say, say it, and don't give me that crap that I don't know anything about the law.

But you don't. You're a legend in your own mind, but you're far out of your depth.

I stated above why I think that it is appropriate for the complaint to state incontrovertible fair-use factors that favor the plaintiffs -- e.g., the movie is commercial, the work used is a copyrighted song -- and you did not even attempt to counter any of my points -- instead you just introduced your high-falutin buzzword "affirmative defense."

Because your "points" aren't relevant to the issue. I'm not addressing the merits of whether a claim of fair use would/will ultimately prevail (which it might); I'm addressing the procedural argument that you made that responses to potential fair use arguments should have been pleaded in the complaint. That's incorrect. It's not a question of "appropriate," as if the question is one of which fork is the salad fork; it's a question of civil procedure. One does not argue one's case in a complaint.

"High-falutin buzzwords" are called "the law." The merits of any fair use defense which may be raised by the defendants will be hashed out in a motion to dismiss or a motion for a preliminary injunction. Not in a complaint.

The law dictionaries are not even consistent in their definitions of the term. One law dictionary says,

Perhaps one shouldn't assume, then, that "law dictionaries" are a substitute for law school.

OK, parody can include satire -- parody is the more general term. My dictionary's definition of "parody" includes the term "satirical."

And perhaps one really shouldn't assume, then, that non-legal dictionaries are a substitute for law school. In copyright law, satire and parody have distinct meanings and (more importantly) distinct implications.

Sunday, May 04, 2008 10:34:00 PM  
Blogger Larry Fafarman said...

David said,
>>>>>> You're a legend in your own mind <<<<<<

Yes, sadly, just in my own mind. The attorneys who defeated the smog impact fee in the state courts became rich and famous. They tried first in federal court but were kicked out. In my own federal court lawsuit against the fee, I found an argument that probably would have allowed them to stay in federal court -- that California lost its federal-court tax-suit immunity by "leaving the sphere that was exclusively its own" (Parden v. Terminal Railway) by basing the fee entirely on the state's special status under federal emissions laws and regulations. The argument was so airtight that the California government attorneys did not even attempt to answer it. My argument was supported by a top former state auto emissions control official's testimony in state court that the fee required the approval of the US EPA. I have pointed this out repeatedly on this blog. I came up with this brilliant argument despite being so ignorant about court proceedings that I titled my answering brief as an "objection," which I learned from TV courtroom dramas where attorneys leap to their feet and shout angrily at the judge, "OBBBBB-JEK-shun." If the judge(s) had ruled correctly in my case, I would have become famous, though -- unfortunately -- not rich (not being an attorney, I would have been ineligible to collect an award). The primary rule of judges is that the little guy -- particularly the pro se little guy -- can never win.

>>>>>> One does not argue one's case in a complaint. <<<<<<

Wrong- one often does argue one's case in a complaint. Many complaints are several pages long, consisting mostly of arguing one's case. Yoko et al.'s complaint addressed some of the factors of the fair use law without identifying that law, e.g., the complaint argued that the song "Imagine" is copyrighted and is John Lennon's signature song (the "nature" of the copyrighted work) and that copyright infringement hurt the market and value of the song (factor #4).

>>>>>"High-falutin buzzwords" are called "the law." <<<<<

Several online law dictionaries don't even define "affirmative defense," and two that do -- Law.com and Findlaw -- completely disagree about its meaning, as I showed above. There are terms or phrases fitting those definitions that do not have that term's ambiguity -- e.g., "counterclaim" and "pleading extenuating circumstances." When you say "affirmative defense," no one is going to know what in the hell you are talking about.

>>>>> Perhaps one shouldn't assume, then, that "law dictionaries" are a substitute for law school. <<<<<

I never made such an assumption. You did say, however, that "high-falutin buzzwords" are called "the law," and that is saying that law dictionaries are pretty darn important. And how can one learn the meaning of "affirmative defense" in law school, idiot, if law dictionaries do not consistently define the term or do not define the term at all?

And one thing that you stupid lawyers and judges don't seem to understand is that a layperson can quickly become an expert in a narrow area of the law -- e.g., "jailhouse lawyers" are often quite good at representing themselves despite often having little formal education and despite the limited resources of prison law libraries (I am talking about pre-Internet days).

Anyway, when there is a dispute in court over the legal meaning of a term, law dictionaries are of course going to be consulted.

>>>>>> And perhaps one really shouldn't assume, then, that non-legal dictionaries are a substitute for law school. <<<<<<

I didn't assume that, either.

>>>>> In copyright law, satire and parody have distinct meanings and (more importantly) distinct implications. <<<<<<

I checked several online law dictionaries and most define neither satire nor parody. Law.com defines parody but does not define satire. I conceded above that the words do not have exactly the same meaning. I said that parody can include satire -- and parody is defined in that way by my printed dictionary. I think that satire can also include parody (but my dictionary's definition of satire does not include parody).

Monday, May 05, 2008 10:42:00 AM  

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