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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