State court judge extends TRO against "Expelled"
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)