State court judge extends TRO against "Expelled"
I previously reported that in addition to the Yoko Ono v. Premise Media suit in federal court, EMI Records and Capitol Records filed a copyright infringement suit against the same defendants in a state court. The name of the state court, New York Supreme Court, is a misnomer -- it is actually a trial court of original jurisdiction.
The more closely watched of the two suits is the federal suit. In that suit, a hearing on a motion for a preliminary injunction was scheduled for May 19 and I still have not seen any news about a decision. I am thinking of getting a PACER account so that I can follow court actions directly.
Meanwhile, the Wall Street Journal has reported that the judge in the state court suit decided to extend the terms of a temporary restraining order against "Expelled" -- I presume that the terms of this TRO are the same as the federal court's, i.e., (1) no new theatres and (2) no production or distribution of video recordings. The WSJ article says,
.
IMO attorney Falzone's answer to the judge's question is weak. My view is that playing the song excerpt was appropriate for the medium, film -- the era of silent films ended 80 years ago. Playing the song is much more attention-getting to bored and dozing viewers than merely reciting or displaying the words.
Also, this is only a state court, so I wonder how far its jurisdiction extends. Actually, IMO, copyright law and court actions should be considered to be pre-empted by the federal government, because of the following constitutional provisions:
(1) Article 1, Section 8
(2) Article III, Section 2
(3) Tenth Amendment
Since copyright regulation was delegated to the United States by the Constitution, the Tenth Amendment says that the right to regulate copyrights is not reserved to the states. Also, copyrights involve interstate commerce, which is another area of regulation that the Constitution delegated to Congress.
There is something called the "dormant" commerce clause, which is the presumption that the Constitution, by delegating interstate commerce regulation to Congress, implicitly prohibits the states from regulating interstate commerce without approval from Congress. So maybe there should also be a "dormant" copyright/patent clause.
IMO "Expelled"s verbal comment about "Imagine" is inane -- saying that Sleazy PZ Myers was not being original but was borrowing a page from John Lennon's playbook -- but it is still fair use.
.
The more closely watched of the two suits is the federal suit. In that suit, a hearing on a motion for a preliminary injunction was scheduled for May 19 and I still have not seen any news about a decision. I am thinking of getting a PACER account so that I can follow court actions directly.
Meanwhile, the Wall Street Journal has reported that the judge in the state court suit decided to extend the terms of a temporary restraining order against "Expelled" -- I presume that the terms of this TRO are the same as the federal court's, i.e., (1) no new theatres and (2) no production or distribution of video recordings. The WSJ article says,
.
Lawyers from both sides have declined to comment, but Columbia copyright guru Tim Wu told us this: “I don’t think this is a hard case; nor a close case. Playing 15 seconds of a song to criticize it is as fair as fair use gets. With respect to Yoko Ono: if this case isn’t fair use, then copyright law has become censorship law.”
But in the state court PI hearing this morning, Judge Richard Lowe wasn’t nearly as convinced as Professor Wu. Judge Lowe asked Falzone why it was necessary to use Lennon’s actual performance of the song, rather than, say, having Stein say the lyrics himself or flashing the lyrics on the screen. To this, Falzone gave what we thought was a compelling and novel reply. Lennon’s performance, said Falzone, triggers a specific emotional response in the viewer’s mind — i.e. “Maybe Lennon’s right; maybe the world would be better off without religion” — and it’s that response that the film, and its use of “Imagine,” seeks to criticize.
IMO attorney Falzone's answer to the judge's question is weak. My view is that playing the song excerpt was appropriate for the medium, film -- the era of silent films ended 80 years ago. Playing the song is much more attention-getting to bored and dozing viewers than merely reciting or displaying the words.
Also, this is only a state court, so I wonder how far its jurisdiction extends. Actually, IMO, copyright law and court actions should be considered to be pre-empted by the federal government, because of the following constitutional provisions:
(1) Article 1, Section 8
The Congress shall have power to . . .
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries . . .
(2) Article III, Section 2
The judicial power [of federal courts] shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States . . .
(3) Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Since copyright regulation was delegated to the United States by the Constitution, the Tenth Amendment says that the right to regulate copyrights is not reserved to the states. Also, copyrights involve interstate commerce, which is another area of regulation that the Constitution delegated to Congress.
There is something called the "dormant" commerce clause, which is the presumption that the Constitution, by delegating interstate commerce regulation to Congress, implicitly prohibits the states from regulating interstate commerce without approval from Congress. So maybe there should also be a "dormant" copyright/patent clause.
IMO "Expelled"s verbal comment about "Imagine" is inane -- saying that Sleazy PZ Myers was not being original but was borrowing a page from John Lennon's playbook -- but it is still fair use.
.
Labels: Yoko Ono lawsuit (new #1)
posted by Larry Fafarman | 5/23/2008 11:03:00 AM
8 Comments:
The comment about "Imagine" is rather inept. I took it to mean that Lennon and PZ both arrived at anti-theistic attitudes under the influence of Darwinism. And that is probably true.
At least PZ should be happy that EXPELLED brought him some fame. Before, he was mainly known as the guy who was dumb enough to pick a fight with a popular cartoonist, Scott Adams. (Scott doesn't favor ID, but, like any reasonably knowledgable person, he has serious doubts about Darwinism.)
And he doesn't suffer fools gladly: so he blistered PZ with a memorable response, calling him a "self-important, humorless, autofellating, ass hat:"
Said PZ, "In Darwin I found
My Urge to Believe (though unsound:)
So that my position
Shows twisted volition,
And Scott knocked my ass hat around!"
lol, I'm not surprised that PZ Meyers would pick a fight with a popular cartoonist (Scott Adams) who is not fully devoted to neo-Darwinism.
PZ Meyers can be a nice man, and I see him write a few nice things, however, he's a militant atheist who is at war with religion and Christianity in particular. To have doubts about evolution is 'heresy' and needs to be fought according to PZ. Evolution I believe is like a religion to him. It's his life, it pays his bills, it pays for the luxuries in which he now enjoys, it has created a fan club for him, and has obtained some fame by a movie in which he hates.
I Agree With Larry (1 of 3)
“IMO attorney Falzone's answer to the judge's question is weak”
I agree,
and
“IMO "Expelled"s verbal comment about "Imagine" is inane -- saying that Sleazy PZ Myers was not being original but was borrowing a page from John Lennon's playbook”
I actually looked up “inane” in the dictionary - “without sense or substance”.
I think there is a sense there, but it seems more like trying to throw something in to try to justify the use of the song. It is certainly not necessary. After all, in a documentary, are we not supposed to listen to the interviewees and come to our own conclusions?
Generally then, yes, I agree with Larry.
Anonymous said...
>>>>>>>I Agree With Larry (1 of 3)
“IMO attorney Falzone's answer to the judge's question is weak” <<<<<<
Actually, I didn't mean that I think that Falzone's statement is weak in general -- I just think that it was a weak answer to the judge's question. The WSJ article says,
Judge Lowe asked Falzone why it was necessary to use Lennon’s actual performance of the song, rather than, say, having Stein say the lyrics himself or flashing the lyrics on the screen . . . Lennon’s performance, said Falzone, triggers a specific emotional response in the viewer’s mind — i.e. “Maybe Lennon’s right; maybe the world would be better off without religion” — and it’s that response that the film, and its use of “Imagine,” seeks to criticize.
Merely saying or displaying the lyrics could accomplish the purpose of conveying a message, so -- in answer to the judge's question -- IMO it is not sufficient just to claim that the filmmakers were trying to convey a message. My argument is that playing the song is appropriate for the medium, film.
>>>>> It is certainly not necessary. <<<<<<
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.
-- King Lear
I Agree With Larry (2 of 3)
“My view is that playing the song excerpt was appropriate for the medium, film -- the era of silent films ended 80 years ago.”
Actually, even the “silent” films used music. The music was played live by a small orchestra or a piano or organ player, usually from a book of stock 8, 16, or 32 bar phrases (“Train” music #2, “Love Scene” #4, “Villain” #1) or sometimes improvised from popular tunes of the day (yes, today THAT would be a copyright infringement if not licensed).
But yes, you’re right - the era of silent film has passed. People have come to expect sound and music in their films.
The era of sound film came about when the technology to synchronize the sound track to the film developed. That’s why, when filmmakers add music to the visuals of the film they’ve edited together, it’s called a “synch” track (as opposed to sounds or music that they record while they are recording the filmed visuals).
So even since the days of silent films, filmmakers have understood and appreciated the value that music adds to their films, either by simply making them more entertaining, or by assisting the drama by helping to direct an emotional response. That’s why film composers are credited and paid.
Likewise when filmmakers use previously recorded “synch track” music (which is what has been done here), the licensing system was established to protect the rights of the copyright holders and to administer the process for which the composers (and lyricists if it were a song) would be paid. After all, if a director/producer chooses to add a piece of music to his/her film, s/he must logically think it adds something of value to the film that nothing but music could provide - that is, a certain kind of entertainment value, or the special way that music can be used to elicit an emotional response. That second is exactly what the defense attorney Falzone said his clients used the music for.
Anonymous said,
>>>>> Actually, even the “silent” films used music. The music was played live by a small orchestra or a piano or organ player, usually from a book of stock 8, 16, or 32 bar phrases (“Train” music #2, “Love Scene” #4, “Villain” #1) or sometimes improvised from popular tunes of the day (yes, today THAT would be a copyright infringement if not licensed). <<<<<<
Yes, but the individual theatres selected what music -- if any -- to play. The movie producer could not be sued for copyright infringement of the music.
>>>>>> After all, if a director/producer chooses to add a piece of music to his/her film, s/he must logically think it adds something of value to the film that nothing but music could provide - that is, a certain kind of entertainment value, or the special way that music can be used to elicit an emotional response. That second is exactly what the defense attorney Falzone said his clients used the music for. <<<<<<
"Expelled" uses the song "Imagine" for an intellectual response as well as an emotional response. Music used as background music is often used just for an emotional response. Furthermore, both intellectual responses and emotional responses can have "entertainment value."
So what is your conclusion -- is it fair use? I think it is, for the following reasons --
(1) There is no danger of market substitution -- no one who just wants to hear the song is going to pay to see the movie.
(2) The use is a verbal and symbolic commentary on both the song and other things.
(3) Only a very short segment -- 10 words and about 15 seconds -- of the song is used.
(4) There are other factors -- e.g., the song gets valuable free advertising from the Strawberry Fields section of Central Park, the song asks us to imagine that there are no possessions -- but these other factors need not be considered here.
If this is not fair use, then nothing is fair use.
I Agree With Larry (3 of 3)
Larry wrote: “Playing the song is much more attention-getting to bored and dozing viewers than merely reciting or displaying the words.”
See? We agree again! Your words above are admitting they used the music because it was more entertaining.
Now, after Judge Lowe asked the defending attorney Falzone specifically why his clients had used an actual musical performance of the song, rather than just using the words (and there’s several creative ways that can be done), Attorney Falzone apparently said:
“Lennon’s performance triggers a specific emotional response in the viewer’s mind — i.e. ‘Maybe Lennon’s right; maybe the world would be better off without religion’ — and it’s that response that the film, and its use of ‘Imagine,’ seeks to criticize.”
So he agrees that the music was used to produce an emotional response.
Both you and he therefore admit that the music was used exactly the same way that music has been used throughout the whole history of film, and for which the composers of the music have routinely been paid (see I Agree With Larry 2 of 3).
So, anyone, what makes this particular case so special for Fair Use of THE MUSIC?
>>>>>> Both you and he therefore admit that the music was used exactly the same way that music has been used throughout the whole history of film, and for which the composers of the music have routinely been paid <<<<<<
But "Expelled" uses "Imagine" for the purpose of commentary as well as for emotional effect and entertainment. The right to make commentary is a First Amendment freedom of expression right that copyright holders must not be allowed to infringe upon. The right to freedom of expression is not for sale. Sure, if the music is just used as background music just for the purposes of entertainment and creating emotional effects, then I agree that the music's copyright holders should be paid.
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