Yoko seeks a copyright protection given only to visual art

The plaintiffs in the Yoko Ono v. Premise Media lawsuit complained extensively that the use of the song "Imagine" in the movie "Expelled" is damaging the song's reputation and their reputation. However, the only US copyright law that considers damage to reputation to be a factor in copyright protection -- 17 USC §106a -- applies only to certain kinds of visual art. Furthermore, the protection in 17 USC §106a covers only destruction, distortion, mutilation, or other modification of the work, and the "Expelled" movie did not modify "Imagine" in any way. 17 USC §106a says, in part,
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(a) Rights of Attribution and Integrity.— Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—

(1) shall have the right—

(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation(emphasis added); and
(3) subject to the limitations set forth in section 113 (d), shall have the right—

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation(emphasis added), and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

(b) Scope and Exercise of Rights. — Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.

"Work of visual art" is defined as follows by 17 USC §101:

A “work of visual art” is—
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
A work of visual art does not include—
(A)
(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.

I don't know why so many things are excluded from the law's definition of visual art, and many of the exclusions are extremely vague (e.g., diagram, model, applied art). Also, I don't know why works made for hire are excluded, or why there is a distinction between works made for hire and works made for sale.

Anyway, I think the reasons for this special copyright protection for works of visual art are that the covered works may be unique, rare, and/or irreplaceable. And since songs are not covered by this special protection given to certain works of visual art, it may be inferred that Congress did not intend songs to have this special protection, which includes the kind of protection that Yoko Ono et al. are seeking -- protection from use that is "prejudicial" to the creator's "honor or reputation." So Yoko Ono et al. are asking for a kind of copyright protection which Congress apparently did not intend to grant to songs. My legal analysis here is an attempt to read the mind of Congress, but the courts often go much farther in trying to read the mind of Congress than I have done here. For example, the Supreme Court's decision in Blum v. Stenson, 465 U.S. 886 (1984), was entirely based on what a Senate report's cited court opinions said or did not say about issues that were not addressed by the Senate report! See Blum, 465 U.S. 886, 892-895. The Senate report was talking only about attorney fee awards in "nonpecuniary" cases (i.e., cases where a monetary award is not sought) whereas Blum v. Stenson's findings from those court opinions that were cited by the report were only about cases where the plaintiffs get non-profit or pro bono representation.

Well, Judge Stein is expected to make some kind of decision this week -- his "Temporary Restraining Order" is no longer temporary. The judge in the related state court suit will probably also make some kind of decision soon.

A related article on this blog: Damage to reputation not grounds for denying fair use.
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