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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.

Monday, June 02, 2008

Yoko Ono two-faced about licensing fees for "Imagine"

In the federal lawsuit over the use of the song "Imagine" in the movie "Expelled," Yoko Ono complains about the loss of licensing fees and at the same time alleges reputational damage resulting from an alleged widespread public misconception that she licensed the song to the defendants! The defendants' answering brief in federal court says about the complaint of loss of licensing fees,

In considering potential market harm, the Court must consider harm to the markets for the song itself and potential licensing markets, while recognizing that "the more transformative the secondary use, the less likelihood that the secondary work substitutes for the original." (citations omitted) Not all harms to these markets, however, are cognizable. Market harm that arises from criticism, for instances, is not cognizable because copyright owners would not be expected to license criticism of their work. (citation omitted). (page 23 of pdf, page 17 of brief).

BTW, I disagree with the above idea that copyright owners would not be expected to license criticism of their work. For example, depending on the circumstances, large licensing fees might persuade copyright owners to license criticism of their work. Also, I think that this expectation is very bad because it implies that licensing implies approval of the licensed use -- such an expectation will tend to make copyright holders reluctant to license works for uses that they disapprove of and will tend to drive up licensing fees where such disapproval exists. Anyway, the issue of licensing fees is moot because the plaintiffs are not asking for licensing fees.

The defendants' answering brief says,

Here, Plaintiffs complain about lost licensing revenue. Pl. Memo at 21-22. But licensing revenues "lost" from transformative uses are likewise not cognizable because copyright owners have no right to these revenues in the first place (citations omitted). (page 24 of pdf, page 18 of brief).

Then the defendants' answering brief talks about the allegation of damage to reputation:
.
Plaintiffs also suggest market harm based on the "widespread belief that [they] had licensed the Song [to] Defendants." Pl. Memo at 21. . . . Plaintiffs likewise complain that their ability to refrain from granting licenses is "critical to the preservation of [John] Lennon's legacy." Pl. Memo at 5. But no one has forced Plaintiffs to license anything and "preserv[ing] legacies" is not the point of the Copyright Act. (page 24 of pdf, page 18 of brief) . . . . . In attempting to show irreparable harm, Plaintiffs first complain about "negative press" they received, including accusations from Internet bloggers that Plaintiffs "sold out" the legacy of John Lennon by permitting it to be used in the Film. Pl. Memo at 6,12; Ono Dec. PP 11-12 (page 26 of pdf, page 20 of brief)

If anything, the unscrupulous BVD-clad bloggers who made the accusation that Yoko et al. "sold out" should be condemned for the presumption that licensing implies endorsement. Judgments in favor of Yoko Ono would imply that the judges accept this bad presumption.

IMO this case is very simple because of the following factors in favor of the defendants:

(1) There is no risk of market substitution -- no one who just wants to listen to the song is going to pay to see the movie.

(2) There is both verbal and symbolic commentary on both the Song and other things.

(3) Only a short segment of the song -- 10 words and about 15 seconds -- is used.

(4) Playing the song -- as opposed to merely reciting or displaying the lyrics -- is appropriate for the medium, film. The era of silent films ended 80 years ago.

(5) The song asks us to "imagine no possessions."

(6) The song gets a lot of free advertising value from the 2½-acre Strawberry Fields section of Central Park, well above and beyond the $1 million that Yoko Ono donated to landscape and maintain the section. The name of the song is at the center of the Strawberry Fields Memorial. Yoko Ono should give back a little by allowing a few seconds of fair use of the song in a movie.

If this is not fair use, then nothing is fair use.

The opportunity for the judges to make timely decisions on the motions for preliminary injunctions has already passed -- oral hearings on the motions were heard on May 19 and May 20 in the federal and state courts respectively and the movie is scheduled to open in Canada on June 6 and the Canadian theatres are still up in the air. We may now expect these sleazeball judges to issue 100-page dissertations whereas one- or two-page opinions would be sufficient. And we may also expect these sleazeball judges to give short or no shrift to low profile cases because of all the time that is being wasted on this high profile case.
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7 Comments:

Anonymous Voice in the Urbanness said...

> Yoko Ono complains about the loss of licensing fees and at the same time alleges reputational damage resulting from an alleged widespread public misconception that she licensed the song to the defendants! <

This seems quite consistent. Where is the problem?

Monday, June 02, 2008 9:26:00 AM  
Blogger Larry Fafarman said...

Only you would say something like that.

Why is it that so often you are the only visitor who finds fault with my posts?

At least you didn't say that the judges are wonderful people.

Monday, June 02, 2008 10:47:00 AM  
Anonymous Hector said...

Again Larry shows that he doesn't have the answer.

You seem to see an inconsistency where others do not. If you think that there is an inconsistency either explain it or admit that you have stepped in it again.

I imagine that, as usual, Larry will not answer the question and then in a day or so, will pretend that either 1) He has already been answered, or 2) It was never asked.

Monday, June 02, 2008 3:04:00 PM  
Blogger Larry Fafarman said...

>>>>>> You seem to see an inconsistency where others do not. <<<<<<<

The inconsistency is self-evident. On the one hand, Yoko implies that she wants licensing fees by complaining that she "lost" them (though she never demands them), but on the other hand, she implies that she does not want licensing fees because accepting them would be seen as "selling out" to the "Expelled" producers.

Monday, June 02, 2008 3:34:00 PM  
Anonymous Anonymous said...

Surely the issue here is that the plaintiff was concerned about loss of licensing fees frompotential licensees OTHER THAN the defendants? In which case there would be no inconsistency.

Tuesday, June 03, 2008 5:52:00 AM  
Anonymous Hector said...

> The inconsistency is self-evident. On the one hand, Yoko implies that she wants licensing fees by complaining that she "lost" them (though she never demands them) <

So that is where you error begins. Saying that you want to be paid for something that has been stolen does not imply that you wanted it stolen in the first place.

Tuesday, June 03, 2008 6:34:00 AM  
Blogger Larry Fafarman said...

Anonymous driveled,

>>>>>> Surely the issue here is that the plaintiff was concerned about loss of licensing fees from potential licensees OTHER THAN the defendants? In which case there would be no inconsistency. <<<<<<

You stupid fathead, Yoko et al. specifically complained about loss of licensing fees from the defendants.

Hector driveled,

>>>>>> The inconsistency is self-evident. On the one hand, Yoko implies that she wants licensing fees by complaining that she "lost" them (though she never demands them) <

So that is where you error begins. <<<<<<<

That quotation is so obviously a quote mine that it does not even qualify to be considered a quote mine. What happened to the "on the other hand" statement?

Folks, Anonymous and Hector are for real -- I am not making this stuff up. I am not practicing Charlie McCarthyism.

Tuesday, June 03, 2008 12:59:00 PM  

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