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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.

Saturday, May 24, 2008

Update on Yoko Ono v. Expelled federal court suit

At last I found a news article about the May 19 oral hearing on a motion for a preliminary injunction in the Yoko Ono federal-court lawsuit against expelled. I previously reported on a related suit in state court.

The article about the federal court suit says,

U.S. District Judge Sidney Stein said he will rule quickly in the case after both sides described the issues surrounding the song and movie in harsh terms during arguments on Monday.

After getting no shrift -- not just short shrift -- in my court cases, I am very resentful of the special treatment that courts give to celebrities. Even the "money talks" principle does not apply, because I pay the same court fees that rich people pay (maybe those sleazebag judges are paid under the table).

Lawyer Anthony T. Falzone said the movie, ``Expelled: No Intelligence Allowed,'' was set to open in Canada on June 6 and DVD rights needed to be finalized by the end of May for distribution in October. The movie is still being shown in about 200 theaters in the United States.

He said an adverse ruling by Stein would mean "you have muzzled the speech of my clients" because they would have to replace the song with other images, losing the chance to make the issue important enough that it could even influence the U.S. presidential campaign.

"If you issue that injunction, you trample on these free speech rights and you put a muzzle on them and you do it in a way that stops them from speaking on this political issue leading up to the election," Falzone said.

That's a novel fair-use argument -- enforcing a copyright could prevent a work from influencing a presidential campaign, even if the argument has some truth to it. There is no question that the movie has had a significant impact on the evolution controversy, which has been an issue in the campaign (e.g., all the Republican candidates were asked about whether they believed in evolution). So IMO it is a good point.
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If the ruling does not occur fast enough, "it truly jeopardizes the whole Canadian release and DVD date," the lawyer said.

That's true about the Canadian release date -- movie theatres must be able to book films in advance, and any delay or threat of delay in starting a run is very disruptive. There may be more flexibility about the DVD release date. The article does not specifically say whether the judge extended the terms of the temporary restraining order that had been in effect prior to the hearing (i.e., no new theatres, no production or distribution of video recordings), but I presume that he extended them.

The judge required EMI Blackwood Music Inc. and the family of John Lennon to post a $20,000 bond by Wednesday, to show they can cover any losses suffered by the film's producers as a result of the lawsuit.

For a film that has earned $millions so far, a $20,000 bond to cover potential losses does not seem like much.

Ono has accused the movie's producers of infringing the song's copyrights by using portions of it without her permission, giving the impression that the Lennon family had authorized it.

Damage to reputation is not considered grounds for denying fair use -- see this post. Ironically, in Dr. Seuss Enterprises v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), the 9th circuit ruled that a borrowing that does not attack the borrowed work cannot be considered to be a "parody" and therefore cannot ever be considered fair use! (See this post and this post). So a borrowing from another work must at least attack the other work in order to be eligible to be considered fair use!

Dorothy M. Weber, a lawyer for Ono, Sean Lennon, Julian Lennon and EMI Blackwood Music Inc., said the makers of the movie "took away their right to stay no."

They have no right to say "no" if the use is fair use.

She said the defendants _ Premise Media Corp. of Dallas, Rampant Films of Sherman Oaks, Calif., and Rocky Mountain Pictures Inc. of Salt Lake City _ had obtained authorization for the other songs used in the movie, a point the judge noted himself.

Not having seen the movie, I don't know the circumstances of the other songs' use in it. Maybe the other songs were used just as background music instead of objects of commentary as in the case of "Imagine," and it is appropriate to require authorization for songs used just for background music. If the use of a borrowed work may be considered fair use, then getting authorization to borrow from that work should be considered a courtesy rather than a requirement. IMO the other songs are irrelevant.

About 20 to 30 seconds of the song are played in the movie.

The reports I seen said that only 10 words and only about 15 seconds of the song were played in the movie.

Weber acknowledged that there are instances when portions of songs protected by copyrights can be used without the copyright owner's permission, a legal right known as "fair use."

But, she said, "fair use is not about destroying the other person's market. It's about carving very, very limited exceptions to a copyright proprietor's monopoly."

"Destroying the other person's market"? How so? There is no risk of "market substitution" here, i.e., where sales of the movie could replace sales of the song. Also, as I noted above, damage to reputation is not considered grounds for denying fair use. IMO the only valid claim that the plaintiffs might have is the weak claim of denial of payment for use of the song (the claim is weak because this use appears to be fair use), but the plaintiffs are not demanding payment.

There are other considerations:

(1) The argument that the movie could just recite or display the words of the song instead of playing the song is not valid because the plaintiffs are demanding complete removal of the song from the movie. Anyway, as I said, playing the song is appropriate for the medium, film.

(2) The song is arguably not copyrightable because it asks us to "imagine no possessions."

(3) The name of the song "Imagine" is at the center of the Strawberry Fields Memorial in Central Park's 2½-acre Strawberry Fields section, which is on land donated by the city. The advertising value that Yoko Ono gets from this section is probably greater than her donation of $1 million for landscaping the section, and she should give something back by allowing a few seconds of fair use of a song in a movie.

Items #2 and #3 above fall in the category of "the nature of the copyrighted work," 17 USC §107(2).
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17 Comments:

Anonymous W. Kevin Vicklund said...

I gotta run, but because it was brought up, the judge did extend the TRO until he could reach a decision on the PI. No decision yet, but I expect it would be Tuesday or Wednesday next week. No time to comment on the rest of the post.

The docket text (essentially the brief description the clerk gives a document beng filed, similar to a syllabus):

ORDER; It is hereby ordered that as set forth on the record today during the oral argument on plaintiffs' motion for preliminary injunction; The temporary restraining order issued April 30, 2008, shall continue in effect until the determination of the currently pending motion for a preliminary injunction; and plaintiffs shall post security in the amount of $20,000.00 on or before May 21, 2008, pursuant to Fed. R. Civ. P. 65(c). (Signed by Judge Sidney H. Stein on 5/19/2008)

Saturday, May 24, 2008 10:43:00 AM  
Blogger Jim Sherwood said...

What's interesting is the Darwinist tactic of resorting to lawsuits, and to persecuting dissenters, in a desperate effort to protect their declining pseudoscience. I don't doubt that Loco Bozo Oh-No-No is doing this to please the Darwinists; and to fight against religions. That seems to be her main motive.

Darwinists can't hope to prevail except through attacks on academic freedom,on freedom of religion, and utimately on freedom of thought.

Saturday, May 24, 2008 1:40:00 PM  
Anonymous Hector said...

> After getting no shrift -- not just short shrift -- in my court cases <

You can't blame the judges for your failure to present a valid case. You did not have standing and in once case you perjured yourself to try to appear to have standing.

> I am very resentful of the special treatment that courts give to celebrities. <

In many cases courts have been quite heavy handed with people just because they were celebrities.

> Lawyer Anthony T. Falzone said the movie, ``Expelled: No Intelligence Allowed,'' was set to open in Canada on June 6 and DVD rights needed to be finalized by the end of May for distribution in October. <

That is not the problem of the victim of the copyright abuse.

> He said an adverse ruling by Stein would mean "you have muzzled the speech of my clients" because they would have to replace the song with other images <

Their free speech is not being muzzled. Unfortunately they were trying to use someone else's speech and make a profit off of it.

> There is no question that the movie has had a significant impact on the evolution controversy <

What impact? Has it changed anyone's mind on either side? All it might have done is to expose the hypocrisy of the creationists with their initial actions to expel some viewers.

Saturday, May 24, 2008 3:29:00 PM  
Blogger Larry Fafarman said...

Hector driveled,
>>>>> You can't blame the judges for your failure to present a valid case. <<<<<<

I did present a valid case, dunghill, and my case was later supported by expert testimony in state court.

>>>> You did not have standing and in once case you perjured yourself to try to appear to have standing. <<<<<

I never perjured myself -- no one ever asked me if I paid the smog impact fee.

>>>> In many cases courts have been quite heavy handed with people just because they were celebrities. <<<<

Whoopee. I am talking about the special treatment that the courts give to celebrities.

>>>>> Lawyer Anthony T. Falzone said the movie, ``Expelled: No Intelligence Allowed,'' was set to open in Canada on June 6 and DVD rights needed to be finalized by the end of May for distribution in October. <

That is not the problem of the victim of the copyright abuse. <<<<<<

Well, the judge asked the plaintiffs to post a $20,000 bond to cover potential losses to the defendants -- but that is not enough to cover those losses.

>>>>> Their free speech is not being muzzled. Unfortunately they were trying to use someone else's speech and make a profit off of it. <<<<<<

It's fair use. All the experts who have looked at it -- Peter Friedman of the "What is Fair Use?" blog, Tim Wu, the attorneys at the Stanford Fair Use Project -- all say that it is fair use. The Wall Street Journal reported,

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.”

>>>>> What impact? <<<<<

The movie has had a big impact. It has made people more aware of the censorship of criticisms of Darwinism, the persecution of the critics of Darwinism, and the influence of Darwinism on the Nazis. Darwinists are apoplectic about the movie.

Saturday, May 24, 2008 11:52:00 PM  
Anonymous Voice in the Urbanness said...

> I did present a valid case, dunghill, and my case was later supported by expert testimony in state court. <

No, cretin. The testimony of a single person about a single point in a different case does not validate your whole case.

>>>> You did not have standing and in once case you perjured yourself to try to appear to have standing. <<<<<

> I never perjured myself -- no one ever asked me if I paid the smog impact fee. <

Did you or did you not pay the fee? Did you not know that you had already been determined in your previous filing not to have standing. It was misrepresentation by omission.

>>>> In many cases courts have been quite heavy handed with people just because they were celebrities. <<<<

> Whoopee. I am talking about the special treatment that the courts give to celebrities. <

You then are complaining that you were not treated as badly as some celebrities are by headhunting prosecutors?

> It's fair use. <

That we will see.

> Darwinists are apoplectic about the movie. <

Some just see it as an opportunity to show the sillyness of the creationists.

Sunday, May 25, 2008 8:44:00 AM  
Anonymous Anonymous said...

"What's interesting is the Darwinist tactic of resorting to lawsuits, and to persecuting dissenters, in a desperate effort to protect their declining pseudoscience. I don't doubt that Loco Bozo Oh-No-No is doing this to please the Darwinists; and to fight against religions. That seems to be her main motive."

Yowzaa Jim, please tell me you don't *really* believe that. As a musician myself, I guarantee you that had any other movie used "Imagine" she would have done exactly the same thing. This lawsuit is not a 'tactic': she is now the owner of the copyrights to the music and the lyrics of "Imagine", and she is defending them, and I'm glad she is, because the music they stole could have been mine. She (and her lawyers) are protecting MY rights, and I thank her.

Monday, May 26, 2008 8:14:00 AM  
Blogger Larry Fafarman said...

Anonymous said...

>>>>>>> "I don't doubt that Loco Bozo Oh-No-No is doing this to please the Darwinists; and to fight against religions. That seems to be her main motive."

Yowzaa Jim, please tell me you don't *really* believe that. As a musician myself, I guarantee you that had any other movie used "Imagine" she would have done exactly the same thing. <<<<<<<

You "guarantee" it? Would Yoko have filed suit had some Darwinist BVD-clad bloggers not complained about the movie's use of the song? One of the claims in Yoko's complaint says,

20. Internet “bloggers” immediately began accusing Mrs. Lennon of “selling out” by licensing the Song to Defendants.

I presume that the typical Internet "bloggers" who accused Yoko of "selling out" are hardcore Darwinists and people who fight religions. Why should Yoko care about what these BVD-clad bloggers think? It is apparent that Yoko is going out of her way to please these bloggers by suing the movie's producers. Isn't it enough that Yoko denied granting or selling permission for the use of the song? Do these bloggers expect her to sue the movie's producers too?

The complaint also says,

24. Rolling credits at the end of the movie state ownership, credit and permissions information for each such song licensed.

25. “Imagine"s ownership and credit information is also displayed among the similar information for the other music used, but close inspection of the momentary reference reveals that the “permission granted” line was omitted in the case of the Song.

26. Members of the consuming public are likely to perceive this credit information in the Film as suggesting that the Song was properly licensed. Indeed, commentators in the press have widely speculated that such use was approved by the owners of the intellectual property associated with “Imagine”.


Of those "members of the consuming public" who "are likely to perceive this credit information in the Film as suggesting that the Song was properly licensed," which ones are the most likely to be offended or to blame Yoko? The Darwinists.

And how does permission to use a copyrighted work imply endorsement of the borrowing work? IMO that is a stupid and dangerous idea -- owners of copyrights should feel free to give permission for use of a copyrighted work without feeling that such permission implies endorsement of the borrowing work.

Yoko's motive is not money -- she is not demanding payment for use of the song. She is demanding removal of all of the song from the movie -- the lyrics as well as the music.

>>>>> because the music they stole could have been mine. <<<<<<

It's not "stealing" if it's fair use.

>>>>>> She (and her lawyers) are protecting MY rights, and I thank her. <<<<<<

The "Expelled" producers (and their lawyers) are protecting OUR rights, and we thank them. Yoko Ono is just trying to throw her weight around, and I hope that she is stopped. Many Darwinists are supporting the defendant because they want to be free to make fair use of "Expelled" to criticize the movie.

Monday, May 26, 2008 5:53:00 PM  
Anonymous Anonymous said...

"You "guarantee" it? Would Yoko have filed suit had some Darwinist BVD-clad bloggers not complained about the movie's use of the song? "

Well, I can’t vouch for what underwear bloggers are wearing (or not) but yes, no matter how or when Yoko Ono found out that “Imagine” was used in a film - any film - without permission, she’d have filed a lawsuit for infringement of copyright.

“The "Expelled" producers (and their lawyers) are protecting OUR rights, and we thank them.”

First, who is “our”? And second, Really? I think the “Expelled” producers are protecting their asses. That they don’t give a hoot about Fair Use except to the extent that it will get them off the hook in this case. I think they don’t personally care about your rights. And you can say “well, that’s just your opinion”, because, yeah, it is.

However, a ruling in favor of Yoko Ono in this case will not take away rights you already have in Fair Use. You say “Many Darwinists are supporting the defendant because they want to be free to make fair use of "Expelled" to criticize the movie.” Fair Use already exists to use the film (or actually, parts of the film) for the purposes of criticism. This case, no matter which way it goes, will not change that.

My point is and always will be that to use music in a film - any music - if you want to call it Fair Use, it has to pass the test for Fair Use as set forth in law for THE MUSIC, not just the words of a song. And I have yet to see one decent argument of that (and scant few that have even tried). That’s why I think Yoko Ono will win, and because, as a sometimes composer myself, I realize what a devastatingly bad precedent this would be if she doesn’t.

Like I said on another thread somewhere, this isn’t about Darwinists or IDers or people who dislike Yoko Ono for whatever reasons or love The Beatles/John Lennon, ultimately it’s about the rights of filmmakers vs. the rights of composers. In this case, the individual filmmakers in question stand to loose rather a lot if Yoko wins, but filmmakers in general loose nothing (they still have the same Fair Use rights they always had). But if Yoko Ono looses, ALL composers will significantly loose their rights to control how their music is used and certainly as important, their right to profit from their work. If a judge is going to claim that filmmakers rights are somehow inherently more important than composers rights, they’d better have a gosh-darn good reason, and this does not look like a gosh-darn good reason to me. I’m sure this is the only reason the judges are taking so long to make their decision. They are fairly giving the defendant’s arguments their due, but also realize what a huge precedent they’d be setting if they ruled in favor of them.

Tuesday, May 27, 2008 6:54:00 AM  
Anonymous Loose Lips said...

(First correct use of "loose" in this thread; should have at least one.)

Tuesday, May 27, 2008 8:11:00 AM  
Anonymous Anonymous said...

re: loose lips

Actually, I just ran to my dictionary and it doesn't appear to be correct. Mea culpa my hyper-enthusiasm for the letter "o".

Tuesday, May 27, 2008 8:46:00 AM  
Blogger Larry Fafarman said...

Anonymous said...
>>>>> when Yoko Ono found out that “Imagine” was used in a film -- any film -- without permission, she’d have filed a lawsuit for infringement of copyright. <<<<<<

OK, if you say so.

:>>>> First, who is “our”? <<<<<<

Well, it's like the time the Lone Ranger and Tonto were surrounded by hostile Indians, and Lone Ranger said, "it looks like we're surrounded, kemo sabe," and Tonto answered, "what do you mean, 'we,' paleface?"

>>>>> I think the “Expelled” producers are protecting their asses. <<<<<<

Well, if you were in their shoes, wouldn't you?

>>>>> That they don’t give a hoot about Fair Use except to the extent that it will get them off the hook in this case. <<<<<

Well, that's what Fair Use is for.

>>>>>> I think they don’t personally care about your rights. <<<<<<

Well, do you think that Loco Bozo Oh-No-No cares about your rights?

>>>>> Fair Use already exists to use the film (or actually, parts of the film) for the purposes of criticism. <<<<<

At least one of the purposes of using "Imagine" is to criticize the song. And IMO a use can be fair use even if the use does not comment on the copyrighted work but just comments on something else or is just humorous -- see this post and this post.

>>>>> You say “Many Darwinists are supporting the defendant because they want to be free to make fair use of "Expelled" to criticize the movie.” Fair Use already exists to use the film (or actually, parts of the film) for the purposes of criticism. <<<<<<

I just don't see the distinction between fair use of the film and fair use of the song.

>>>>>> any music - if you want to call it Fair Use, it has to pass the test for Fair Use as set forth in law for THE MUSIC, not just the words of a song. <<<<<<

There is no fair use law just for music -- the same fair use law, 17 USC §107, applies to printed matter, music, movies, etc.. There is a separate copyright law for certain works of "visual art," 17 USC §106a. And music v. lyrics is not an issue in the case -- Yoko et al. are asking that all parts of the song be removed from the movie, not just the music.

>>>>> If a judge is going to claim that filmmakers rights are somehow inherently more important than composers rights <<<<<<

It's a matter of fair use, not filmmakers' rights vs. composers' rights. What if some rock group wants to sing Darwinist songs at a concert while flashing pictures of "Expelled" on a screen?

Tuesday, May 27, 2008 2:37:00 PM  
Anonymous 'Nonymous said...

>>>> First, who is “our”? <<<<<

Well, it's like the time the Lone Ranger and Tonto were surrounded by hostile Indians ...


"Like"?

And you say ViU has trouble with analogies.

Tuesday, May 27, 2008 4:34:00 PM  
Anonymous 'Nonymous said...

< What if some rock group wants to sing Darwinist songs ... ? >

Name a "Darwinist song". (I don't think there are any.)

Tuesday, May 27, 2008 4:37:00 PM  
Blogger Larry Fafarman said...

'Nonymous said...
>>>> First, who is “our”? <<<<<

Well, it's like the time the Lone Ranger and Tonto were surrounded by hostile Indians ...

"Like"?

And you say ViU has trouble with analogies. <<<<<<<<

A stupid question deserves a stupid answer.

>>>>>> Name a "Darwinist song". (I don't think there are any.) <<<<<<

Well, maybe you could write the first one. There is a "Darwin" everything else -- Darwin Day celebrations, "I love Darwin" knick-knacks, "Friend of Darwin" certificates for the Dover plaintiffs crew, etc. -- so why not Darwinist songs? For example --

Imagine there are no creationists,
it isn't hard to do.
Imagine there are only Darwinists,
if only it were true.
Imagine all the people,
descended from goo,

Actually, the "Expelled" producers consider "Imagine" to be a Darwinist song -- they told World Net Daily,

"If you really listen to the lyrics of 'Imagine' then you realize that it represents everything that the Neo-Darwinists want. 'Imagine there's no Heaven … No hell below us … Nothing to kill or die for And no religion too…' That's exactly what the Darwinist establishment wants to do: get rid of religion," said Walt Ruloff, CEO of Premise Media. "And that's what we point out when we play less than 15 seconds of the song and show some of the lyrics on screen."

Tuesday, May 27, 2008 6:52:00 PM  
Anonymous 'Nonymous said...

You must be very pious -- a veritable monk. Perhaps that is what you mean by "monk"ey trials?

Wednesday, May 28, 2008 10:31:00 AM  
Blogger Jim Sherwood said...

A great song, Larry!

Tuesday, June 03, 2008 3:19:00 PM  
Anonymous Anonymous said...

"a great song, Larry!"

Jim, I'm confused. What song has Larry produced?

Thursday, June 05, 2008 12:46:00 PM  

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