Yoko Ono two-faced about licensing fees for "Imagine"
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.
Labels: Yoko Ono lawsuit (new #1)