Yoko suit documents should be filed electronically

As I previously noted, the temporary restraining order in the Yoko Ono v. Premise Media ("Expelled") copyright infringement suit required hand delivery of documents. A June 2004 press release from the federal district court where the suit was filed says,

The United States District Court for the Southern District of New York announced today that beginning June 7, 2004, all District Judges and Magistrate Judges will assign newly filed civil and criminal cases to the Electronic Case Filing (ECF) system . . . .With certain limited exceptions, documents filed in ECF cases must be filed electronically and will not be accepted in paper form . . .

Older cases . . .as well as pro se cases, Habeas Corpus cases, Social Security cases, and Multi-District Litigation will not be electronically filed and should continue to be filed on paper. . . .

Don't have a computer or scanner? Bring your ECF password and the paper documents to the courthouse, and you can use our public computers to electronically file your documents.

Electronic filing has a lot of advantages -- instant transmission, the documents can be easily accessed, copied, excerpted, and re-transmitted from anywhere, and the documents cannot easily be misplaced.

At first I was confident that the judge would deny the plaintiffs' motion for a preliminary injunction, but now I am beginning to wonder -- this judge is beginning to look like a nutcase.

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Is Yoko v. Expelled judge incompetent?

I think so. I took a closer look at the TRO's schedule for delivery of answering and reply papers:

IT IS FURTHER ORDERED, that answering papers, if any, shall be served upon Plaintiffs by hand delivering copies thereof to Plaintiffs counsel, Shukat Arrow Hafer Weber & Herbsman LLP, 111 West 57th Street, New York, New York 10019 on or before May _14_, 2008 at 5:00 p.m.; and

IT IS FURTHER ORDERED, that reply papers, if any, shall be filed with the Court and served upon Dendants (sic) by hand delivering copies thereof to be retrieved by Defendants’ counsel, on or before May _16_, 2008 at 5:00 p.m..

Because the court rules allow electronic transmission of papers if the receiving party consents, I previously expressed surprise that the judge required hand delivery. Now looking at the deadlines for delivery, I see that the plaintiffs' attorneys, when receiving the final answering papers, have as little as 48 hours to have reply papers hand-delivered to the defense attorneys at the other end of the country. That's ridiculous. This judge is off his rocker.

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Longevities of patents and copyrights

Can anyone justify the enormous disparity between the longevities of patents and copyrights? Anyone? Anyone? Bueller? A patent is granted for just one non-extendable period of 20 years following the date of filing of the application, but a copyright may be in effect for up to 95 years -- or maybe even longer -- after first going into effect. As if copyright longevity was not long enough already, the Mickey Mouse (Sonny Bono) Copyright Term Extension Act extended it. Copyright-holders must have a lot of clout to have been able to push through that Act. This disparity between patents and copyrights is especially surprising considering that some patents may be highly commercially valuable forever whereas many copyrights are highly commercially valuable for just a few weeks, a few months, or a few years. Things invented over a century ago are still top sellers -- but how many, say, top-selling books and songs are more than a few months or a few years old?

Right now Yoko Ono is suing the producers of the movie "Expelled" for using just 15 seconds of John Lennon's song "Imagine" without permission. If "Imagine" had been patented instead of copyrighted, the patent would have expired a long time ago. I hope Loco Bozo Oh-No-No loses the suit. It's past time to cut copyright-holders down to size.

Also, Yoko gets a fortune's worth of free advertising from the 2½-acre Strawberry Fields section of Central Park on land donated by the city (including advertising for "Imagine," whose name is at the center of the Strawberry Fields Memorial) but she is too chintzy to allow a few seconds of fair use of "Imagine" in a movie.

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Expert attacks Yoko v. Expelled suit

Peter Friedman, who teaches at the Case Western Reserve University's School of Law, says on the "What is Fair use?" blog,

My understanding is that 15 seconds of the song are used in the film. Quite plainly, Ono does not agree with the filmmakers' point of view. Simply to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users' message objectionable. That certainly seems to be the conclusion of the Stanford Fair Use Project, which has taken on the filmmakers' defense in Ono's lawsuit. Their description of the use of the song in the film seems to confirm my own suspicions regarding the legitimacy of the fair use defense in this case:

The clip of “Imagine,” which is audible for approximately 15 seconds, is used in a segment of the documentary in which the film’s narrator and author Ben Stein comments on statements made by Myers and others about the place of religion. In the documentary Stein says: “Dr. Myers would like you to think that he’s being original but he’s merely lifting a page out of John Lennon’s songbook.” This is followed by an audio clip of Lennon’s song “Imagine,” specifically, the lyrics “Nothing to kill or die for, And no religion too.”

The movie makes both verbal and symbolic (the visual scenes in the movie) commentaries about the song.
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Meanwhile, many Darwinists mistakenly think that Yoko's suit is a slam-dunk shoo-in and have vilified the producers of "Expelled" in the worst terms. Josh Rosenau, who is on the staff of the National Center for Science Education, said, "Expelled steals from the dead." Another Darwinist said of the temporary restraining order, which might be routine in such lawsuits, "Justice is swift, for some of us anyway." The TRO is in effect only until the hearing on a motion for a preliminary injunction, now scheduled for May 19, and the TRO allows theatres currently showing the movie to continue showing it. However, the comments in a comment thread on Sleazy PZ's Pharyngula blog show that even many people who dislike "Expelled" think that Yoko Ono's lawsuit is wrong.

As I said before, IMO Footnote 14 of Campbell v. Acuff-Rose Music, Inc., 510 US 569, is a key precedent here:

Footnote 14:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required. (emphasis added)

My other articles about the Yoko suit may be found by clicking on the "Yoko Ono lawsuit" post label below (this post label is also in the sidebar).
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Two blogs about copyrights

A new blog titled "What is Fair Use?" began in February and now has 107 posts. The "About this blog" statement in the sidebar says,

The "authors" of this blog are Peter Friedman and the students in his Legal Analysis & Writing classes at Case Western Reserve University of Law during the spring 2008 semester. As their last writing project of the year, the students wrote cross-motions for summary judgment in a fictional lawsuit brought by ASCAP and the owners of the copyright to "Que Sera, Sera (Whatever Will Be, Will Be)." The Plaintiffs (represented by half of my students) alleged infringement of their copyright in Que Sera, Sera by the KLF, the creators of a recording entitled "K Cera Cera."

K Cera Cera (mp3) is a recording of the Red Army Choir singing an amalgam of Que Sera, Sera and John Lennon and Yoko Ono's Happy Xmas (the War is Over). The Defendants also include Arista Records, the U.S. distributor of K Cera Cera, and Arista's corporate parent, Sony BMG. The second half of the students, of course, represents the Defendants.

In the course of the students' work in researching and writing their summary judgment briefs, the professor and classes posted items here that raise and explore the legal and policy implications implicit in and related to the infringement claim and Defendants' fair use defense.

Here are the relevant documents from the lawsuit:
(1) Plaintiffs' Complaint filed in the fictional action.
(2) Defendants' Answer filed in the fictional action.
(3) Excerpts from the deposition of Joyce Hatto, Senior Director of A&R for Defendant Arista Records.
(4) Excerpts from Plaintiffs' Responses to Defendants' Requests to Admit.
(5) A discussion regarding ASCAP's standing as a plaintiff is contained in the comments to William Patry's blog post here.

William Patry's "The Patry Copyright Blog" has several hundred entries and began in April 2005.

The above moot case is not entirely fictional -- the Red Army Choir sang "Sweet Home Alabama" in English at a concert and the challenged recording is partly based on a Lennon/Ono song, and Ono is actually suing over an alleged copyright infringement of a Lennon song (though Ono is not a plaintiff in this moot case). Oddly, neither blog discusses or mentions what could be the most celebrated of current fair use cases, Yoko Ono v. "Expelled." Maybe the reason for that is that the bloggers on these blogs consider the suit to be frivolous? Even so, IMO these bloggers should at least mention the suit and if they think that it is frivolous, then they should say why they think it is frivolous. Anyway, these two blogs, "What is Fair Use?" and "Patry's Copyright Blog," may be good sources of ideas for the defense in Yoko.
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Important addition to preceding post about 9th Circuit

Here is an important point that I left out of my last post.

By way of review, The summary of the 9th Circuit's Dr. Seuss decision says (the summary, which does not constitute a part of the opinion of the court, is copyrighted by Barclays Law Publishers),

[10] The parodist is permitted a fair use of a copyrighted work if it takes no more than is necessary to "recall" or "conjure up" the object of the parody. The critical issue was whether The Cat NOT in the Hat! was a parody. [11] Parody must target the original, not just its general style, the genre to which it belongs, or society as a whole. (numbers are item numbers, not footnote numbers. Emphasis added)

The opinion of the court itself implies -- but does not explicitly say -- that the critical issue was whether The Cat Not in the Hat! was a "parody" according to the court's definitions. The opinion of the court itself does say that in order for the borrowing work to be considered a "parody," it must at least target the borrowed work, but may in addition target something else.

Anyway, rather than confuse the issue by using the ambiguous words "parody" and "satire," I will just distinguish between borrowing works that (1) target the borrowed work and (2) do not target the borrowed work. A key sentence in the Supreme Court's Campbell opinion said,
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If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. (emphasis added)

So Campbell only says that when "the commentary has no critical bearing on the substance or style of the original composition," then "the claim to fairness in borrowing from another's work" only "diminishes accordingly," and -- contrary to the above official summary of the Dr. Seuss decision -- Campbell does not say that the claim to fairness in borrowing then necessarily disappears entirely. So the whole parody v. satire issue is a house of cards that was built on a false interpretation of Campbell.

BTW, some dictionaries' definitions of "parody" say that the a parody might just be humorous and does not necessarily have to target anything.

In a previous post, I pointed out that Footnote 14 of Campbell is also important.
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9th Circuit wrong about parodies and satires in fair use cases

"O, Reason not the need!"
-- King Lear in Shakespeare's play "King Lear"

"Hitler did not need Darwin to devise his heinous plan to exterminate the Jewish people and Darwin and evolutionary theory cannot explain Hitler's genocidal madness."
-- Anti-Defamation League's denunciation of "Expelled"

According to the 9th Circuit Court of Appeals, the above cartoon would not be fair use of Shakespeare's "King Lear" because the cartoon is not a commentary about the play but is a commentary about something else. Another example would be my satirical use of the "best butter" story from the Mad Hatter's Tea Party in Alice in Wonderland (example: judges are not supposed to give legal advice to litigants but Judge Jones' legal advice was OK because it was the "best" legal advice).

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Note: These discussions of parody v. satire may be of limited usefulness in the Yoko Ono v. Expelled case because these discussions are mainly about complete works whereas the "Expelled" movie uses just a few seconds -- about 15 -- of "Imagine." However, this issue of parody v. satire could nonetheless arise in the case.

An article titled "Unfair Use: The Lack of Fair Use Protection for Satire under § 107 of the Copyright Act" by Adriana Collado, in the June 2004 issue of the Journal of Technology Law & Policy says,

Modern application of the Fair Use Doctrine to parody and satire has been shaped by two cases: Campbell v. Acuff-Rose Music, Inc. [21] and Dr. Seuss Enterprises v. Penguin Books USA, Inc.[22]

I discussed Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), a Supreme Court decision (as indicated by "U.S."), in recent preceding posts ("Issue in Yoko v. Expelled: parody v. satire" and "Parody v. satire II: Footnote 14 of Campbell is the key"). Dr. Seuss Enterprises v. Penguin Books USA, Inc.109 F.3d 1394 (9th Cir. 1997) is, as indicated, a 9th Circuit decision.

The article continues,
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The [Supreme] Court examined the Fair Use Doctrine carefully, and rejected the notion that any one of the fair use factors, by itself, would create a presumption against fair use. [40] In doing so, the Court seemingly left the door open for fair use protection for satiric works. That door was slammed shut by the Ninth Circuit, however, in Dr. Seuss Enterprises v. Penguin Books USA, Inc.[41] [p70] . . . . .

Although the Ninth Circuit cited Campbell when deciding Dr. Seuss, it did not follow Campbell’s interpretation of the Fair Use Doctrine. [42] In deciding whether the appellants’ use was fair, the circuit court based its ruling on the fact the appellants’ creation was a satire, not a parody.[43]

Note: the article and the Dr. Seuss decision define "parody" as something that ridicules the original work and "satire" as something that ridicules something else -- definitions that I disputed in my previous articles on the subject.

The summary of the Dr. Seuss decision says (the summary, which does not constitute a part of the opinion of the court, is copyrighted C 1994 by Barclays Law Publishers),

[10] The parodist is permitted a fair use of a copyrighted work if it takes no more than is necessary to "recall" or "conjure up" the object of the parody. The critical issue was whether The Cat NOT in the Hat! was a parody. [11] Parody must target the original, not just its general style, the genre to which it belongs, or society as a whole. (numbers are item numbers, not footnote numbers)

As for the statements in bold above, the Supreme Court in Campbell says nothing of the kind, as I showed in my two preceding posts on the issue, and Collado's article agrees that Campbell says nothing of the kind.

The court's opinion itself says in Dr. Seuss,

The [Supreme] Court pointed out [in Campbell] the difference between parody (in which the copyrighted work is the target) and satire (in which the copyrighted work is merely a vehicle to poke fun at another target): "Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing."

Wrong, wrong, wrong. For starters, the Dr. Seuss opinion's above interpretation of the Campbell opinion's statememt is wrong. Furthermore, as I showed in my previous posts, the Supreme Court's interpretations of the meanings of "parody" and "satire" are wrong. The only clear difference between "parody" and "satire" is that "parody" is always an imitation of another work. Both a parody and a satire that is an exact copy of the borrowed work can poke fun at the borrowed work, another target, or both. Anyway, this distinction between parodies or satires that ridicule the borrowed work and those that ridicule only something else is arbitrary, capricious, vague, nitpicking, stupid, and just plain wrong. The titles of two expert legal treatises on the subject, "The Satire/Parody Distinction in Copyright and Trademark Law -- Can Satire Ever be a Fair Use?" (an American Bar Association report) and "Unfair Use: The Lack of Fair Use Protection for Satire under § 107 of the Copyright Act," show that there is considerable alarm over the courts' applications of the fair use law to parodies and satires.

Also, it is surprising that the Dr. Seuss decision was published, considering that it is not a final decision but is only an interlocutory decision on a preliminary injunction:

For the foregoing reasons, we affirm the district court's order granting a preliminary injunction prohibiting the publication and distribution of the infringing work.

The stupidity of the 9th Circuit judges here is no surprise to me -- what can be expected of a bunch of incompetent buffoons who in my lawsuit against the unconstitutional California "smog impact fee" could not understand the simple argument that the state lost its federal-court tax-suit immunity by "[leaving] the sphere that is exclusively its own" (Parden v. Terminal Railway, 377 U.S. 184 (1964)) by basing the fee entirely on the state's special status under federal auto emissions laws and regulations. An expert later testified in state court that the fee required the approval of the US Environmental Protection Agency! And those idiots failed to dismiss a California lawsuit that clearly belonged in the DC Circuit court of appeals.

Here are some excerpts from the book "The Cat NOT in the hat." IMO these excerpts show a lot of creativity and originality and I find them amusing. Also, some definitions of "parody" say that a parody can be merely humorous and not necessarily mocking. "JUICE" is from the fictitious author of the book, "Dr. Juice," an imitation of "Dr. Seuss," where "juice" comes from O.J. Simpson's initials, sometimes interpreted as "orange juice."

A happy town
Inside L.A.
Where rich folks play
The day away.

But under the moon
The 12th of June.
Two victims flail
Assault! Assail!
Somebody will go to jail!

Who will it be?
Oh my! Oh me!

- - - - - - - - - - - - - - -

A plea went out to Rob Shapiro
Can you save the fallen hero?
And Marcia Clark, hooray, hooray
Was called in with a justice play.

A man this famous
Never hires
Lawyers like
Jacoby-Meyers.
When you're accused of a killing scheme
You need to build a real Dream Team.

Cochran! Cochran!
Doodle-doo
Johnnie, won't you join the crew?
Cochran! Cochran!
Deedle-dee
The Dream Team needs a victory.

- - - - - - - - - - - - -

Hmm. . . take the word JUICE.
Then add ST.
Between the U and I, you see.
And then you have JUSTICE.
Or maybe you don't.
Maybe we will.
And maybe we won't.
`Cause if the Cat didn't do it?
Then who? Then who?
Was it him?
Was it her?
Was it me?
Was it you?
Oh me! Oh my!
Oh my! Oh me!
The murderer is running free.

IMO the main considerations in fair use cases should be: (1) the risk of "market substitution" and (2) "tarnishment," as defined as "a form of trademark dilution in which a junior mark’s similarity to a famous mark causes consumers to mistakenly associate the famous mark with the junior user’s inferior product or service," 74 Am. Jur. 2d Trademarks and Tradenames § 116.

This could be the only blog on the Internet that has done much legal analysis of the Yoko Ono suit. The Darwinist blogs mostly just say that the "Expelled" producers robbed Yoko.
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Damage to reputation not grounds for denying fair use

Barney T. Rex parodies:


Another insult to Islam that could get us into deep-shit trouble: "The Jihad to Destroy Barney" roleplaying game.


San Diego Chicken was sued for beating up Barney T. Rex in ballgame skits. Mr. Chicken won the suit.

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Yoko Ono et al.'s official court complaint against the producers of "Expelled" said,
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20. Internet “bloggers” immediately began accusing Mrs. Lennon of “selling out” by licensing the Song to Defendants.

- - - - - - - - - - - - -

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

25. “Imagines” 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”.

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28. Upon information and belief, Defendants have also intentionally and willfully used the Song in a fashion that suggests to the public that such use was authorized, endorsed or sponsored by the Plaintiffs.

An article titled "Unfair Use: The Lack of Fair Use Protection for Satire under § 107 of the Copyright Act" by Adriana Collado, in the June 2004 issue of the Journal of Technology Law & Policy says,

Although creators may argue that use of their works in satires which are controversial, distasteful, or offensive could lead to tarnishment by association, [74] reputational harm is not an interest that copyright law is designed to protect.[75] When authors or artists gain fame and fortune because their work has become popular or part of the social vernacular, they should be prepared to withstand unfavorable comments or uses of their works. Indeed, satiric use of a work is often a sign an artistic or literary creation has achieved public recognition.

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[74] Tarnishment is a form of trademark dilution in which a junior mark’s similarity to a famous mark causes consumers to mistakenly associate the famous mark with the junior user’s inferior product or service. 74 Am. Jur. 2d Trademarks and Tradenames § 116 (2003).

[75] Anastasia P. Winslow, Rapping on a Revolving Door: An Economic Analysis of Parody and Campbell v. Acuff-Rose Music, Inc., 69 S. Cal. L. Rev. 767, 783-84 (1996).

As Harry Truman used to say, "if you can't stand the heat, stay out of the kitchen."
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Parody v. satire II: Footnote 14 of Campbell is the key

This is a review and follow-up of my last post.

Online law dictionaries generally do not define either "parody" or "satire." The Law.com dictionary online dictionary defines "parody" as an imitation: "the humorous use of an existing song, play, or writing which changes the words to give farcical and ironic meaning." The only clear distinction between "parody" and "satire" in non-legal dictionaries is that a parody is an imitation of an original work whereas "satire" is not defined as either an imitation or exact copy of an original work (and a satire need not copy or borrow from another work at all) -- the Supreme Court and some legal analysts have not emphasized this distinction. Since "Expelled" did not use an imitation of "Imagine," "Expelled"s use of the song cannot be a parody and must therefore be a satire. It appears that so far as dictionaries' definitions are concerned, a parody or a satire may ridicule anything: an original work, an original work's author(s), other individuals, a group, society, or whatever. In fact, I would even go so far as to loosely define "parody" as a "satire that is an imitation of an original work" (though there may be nuances of meaning that would make this definition an oversimplification). However, the Supreme Court apparently made new legal definitions of parody and satire, and furthermore other authorities misinterpreted the Supreme Court's definition of satire, which the Supreme Court did not clearly define. A report by the American Bar Association says (page 2),
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The [Supreme] Court explained further that while a parody targets and mimics the original work to make its point, a satire uses the work to criticize something else, and therefore requires justification for the very act of borrowing. [Campbell v. Acuff-Rose Music, Inc., 510 US 569, 581] (emphasis added)

However, that above definition of satire misrepresents what the court actually said in Campbell ((I wish that Cornell's copies of opinions would include page numbers in the text in order to make stuff easier to find):
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Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. [15] (emphasis added)

The preceding sentence in Campbell is footnoted by Footnote 15, which says,

15. Satire has been defined as a work "in which prevalent follies or vices are assailed with ridicule," 14 The Oxford English Dictionary 500 (2d ed. 1989), or are "attacked through irony, derision, or wit," The American Heritage Dictionary 1604 (3d ed. 1992).

But the ABA report's interpretation of the above dictionary definitions -- that a "satire" by definition "uses the work to criticize something else" -- reads too much into them; these definitions do not say that a satire by definition can never criticize an original work or an original work's author(s). And the Supreme Court's above distinctions between "satire" and "parody" ("Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.") are vague and meaningless.

An article titled "Unfair Use: The Lack of Fair Use Protection for satire under § 107 of the Copyright Act," in the June 2004 issue of the Journal of Technology Law & Policy, says,

II. Parody Versus Satire

A. What Is the Difference?
Courts often had difficulty distinguishing between parody and satire because “parody often shades into satire . . . [and] a work may contain both parodic and nonparodic elements.”[11] Then, in Campbell v. Acuff-Rose Music, Inc., the U.S. Supreme Court defined parody as “the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.”[12] Indeed, the wittiest parodies target not only the parodied material, but also the societal standards of the audience that made the original popular.[13] In addition, Campbell defined satire as “commentary [that] has no critical bearing on the substance or style of the original composition. . . .”[14] In subsequent decisions courts have used Campbell’s definitions of parody and satire to distinguish between the two genres.[15] (the numbers are for footnotes. Emphasis added)

Again, the bolded definition of "satire" given above misrepresents what the court actually said. In a paragraph that discussed parody and that did not mention satire at all, Campbell said (corresponding text is shown in bold):

If . . . . the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish) . . . .(emphasis added)

So contrary to a widespread misconception, the Supreme Court never defined "satire" as something that never criticizes an original work or an original work's author(s) but only criticizes something else. And contrary to another widespread misconception, Campbell did not say that "satires" -- which are often not even clearly distinguished from "parodies" -- deserve less fair-use protection than "parodies" or even no fair-use protection at all -- the court only said that satires require a special kind of justification: "justification for the very act of borrowing." But since parodies also require such justification for fair use, this statement of the Supreme Court is meaningless. In summary, the parody/satire distinction that is commonly accepted as a fair-use principle is a gigantic fraud.

Anyway, any distinction between "parody" and "satire" does not matter here because footnote 14 of Campbell v. Acuff-Rose Music applies to both parodies and satires "when there is little or no risk of market substitution," which is the case in "Expelled"s use of "Imagine":

Footnote 14:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required. (emphasis added)

As for "other factors," no one who just wants to listen to "Imagine" is going to go see "Expelled" in a theatre or buy a video recording of the movie.

It's important to pay attention to the footnotes -- I usually overlook them, something I will not do in the future. I commend the authors of the ABA report for pointing out the significance of footnote 14. And thanks again (not) to commenter "David" for pointing out the importance of the parody/satire issue in a rude manner (saying that I know nothing about the law).

Disclaimer: Personally, I think that "Expelled"s verbal comment about "Imagine" -- that Sleazy PZ Myers' atheism was not new but was merely borrowed from John Lennon's playbook -- is rather inane. But it is still fair use.
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Issue in Yoko v. Expelled: parody v. satire

In the comment thread under my post "Legal analysis of Yoko Ono's suit against 'Expelled'," a commenter named "David" -- probably a pettifogging attorney -- said,

Larry really should stop pretending he knows anything about the law.

Even a layperson who is ignorant of the law in general can quickly become an expert in a narrow area of the law through extensive investigation and study. This is something that legal professionals fail to understand. In fact, I see no reason why well-argued amicus briefs from laypeople should not be considered acceptable. There is nothing wrong about amateurs doing legal analysis, as they can point out things that the pros missed. Different issues apply to different cases, so experience with other cases is not necessarily an advantage.

David said in the same comment,

(Larry said)"Indeed, a common defense against charges of copyright infringement is that the use is satire, which is often not favorable towards the copyrighted material."

Also, you're confusing parody and satire.

-- and said in a later comment,

And perhaps one really shouldn't assume, then, that non-legal dictionaries are a substitute for law school. In copyright law, satire and parody have distinct meanings and (more importantly) distinct implications.

You are the one who is confusing "parody" and "satire." Since neither "parody" nor "satire" is defined in most online law dictionaries, it is necessary to use non-legal dictionaries to get definitions. The meanings of parody and satire overlap, and the only big difference is that a "parody" is an imitation of the original work whereas "satire" does not necessarily involve an imitation of the original work. Also, one online law dictionary that does define "parody," Law.com dictionary, supports this idea of imitation: "the humorous use of an existing song, play, or writing which changes the words to give farcical and ironic meaning." Since "Expelled"s use of "Imagine" does not involve an imitation of "Imagine," then such use must be satire. So I didn't confuse parody and satire, David, I used the correct term for "Expelled"s use of "Imagine."

David is right about one thing -- the courts have attempted to make a distinction in application of copyright law to parodies and satires. However, a report titled "The Satire/Parody Distinction in Copyright and Trademark Law -- Can Satire Ever be a Fair Use?", by the Intellectual Property Litigation Committee of the American Bar Association, gives an explicit Supreme Court definition for "parody" but not for "satire" (as I noted above, IMO the only clear difference between the two terms is that parody involves imitation of the original work whereas "satire" does not necessarily involve imitation of the original work). The ABA report says (page 2):
.

Supreme Court Weighs in on Parodic and Satiric Fair Use in Campbell v. Acuff-Rose Music, Inc.

The Supreme Court has unequivocally held that a parody may qualify as fair use under §107 (the fair use law, 17 USC §107). According to the Court, a parody is the "use of some elements of a prior author's composition to create a new one that, at least in part, comments on the author's works." Id. at 580 . . . .

1. The Court creates a fair use dichotomy between parody and satire

After concluding that parody could be considered fair use, the Court quickly qualified its holding: if the work has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working something fresh," the work is less transformative, and other fair use factors, such as whether the new work was sold commercially, loom larger. Id. at 580. The Court explained further that while a parody targets and mimics the original work to make its point, a satire uses the work to criticize something else, and therefore requires justification for the very act of borrowing. See id. at 581. As a result, the Court appears to favor parody under the fair use doctrine, while devaluing satire. (emphasis added)

The above statement in bold misrepresents what the court actually said:

Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

Anyway, IMO these distinctions between "parody" and "satire" -- like so many distinctions that the courts make -- are arbitrary, capricious, vague, nitpicking, and immaterial. IMO what counts in fair use is whether the use is a commentary, whether a commentary on the original work, society, or both. Consider, for example, my picture showing Adolf Hitler quoting Shakespeare's King Lear, "What? I don't 'need' Darwin? O, reason not the need!," in response to the Anti-Defamation League's statement, "Hitler did not need Darwin to devise his heinous plan to exterminate the Jewish people." Is that not fair use of King Lear even though it is not a parody? (notwithstanding the fact that King Lear's copyright -- if it ever had one -- has expired).

Also, the following statement in the ABA report (page 3) supports a fair use claim for "Expelled"s use of "Imagine":

Footnote 14 clarifies the Court's position regarding parody versus satire, and reemphasizes the fact that a proper fair use analysis considers all of the §107 factors (and potentially others). The Court underscored this point, noting that "parody, like any other use, has to work its way through the relevant [fair use] factors, and be judged case by case, in light of the ends of copyright law." Id. at 581. Therefore, even satire that does not target the original work can be considered fair use if, for instance, there is little possibility that consumers would view the satire as a commercial substitute (§107(4)), or if only a small amount of the copyrighted work was used (§107(3)).

§107(3) and §107(4) refer to the third and fourth factors in the fair use law, 17 USC §107:

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Footnote 14 of Campbell v. Acuff-Rose Music says,

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required. (emphasis added)

Disclaimer: the ABA report runs for 17 pages and my above analysis of the report is not intended to be a complete analysis. I may return to the report later.

Anyway, David, thanks for pointing out that there are legal differences (such as they are) between "parody" and "satire" -- but you should have done so in a polite way.
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Red Army Choir, Finnish rock group sing "Sweet Home Alabama" -- in English

Speaking of copyright infringements (re: Yoko & XVIVO vs. "Expelled"), is the following a copyright infringement?

Back in the days of the Soviet Union, the Soviet Red Army had an official choir composed of male soldiers and musicians. It still exists. The Red Army Choir performs throughout Russia to this day. Now consider the Finnish rock band called The Leningrad Cowboys. A little while ago, they held a concert in Russia, in which -- to the screaming applause of Russkie teenagers -- they got the Red Army Choir to join them on stage for a performance of "Sweet Home Alabama." In English.

You can see them perform here. They're good.

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Temporary Restraining Order issued in Ono suit

On April 30, last Wednesday, the judge in Yoko Ono's lawsuit issued a temporary restraining order against the defendants. The order requires that pending a hearing on a motion for a preliminary injunction, now scheduled for May 19, (1) theatres showing "Expelled" as of the date of the order may continue to show it but no other theatres may start showing it and (2) CD's or DVD's of the movie may not be manufactured or distributed anywhere in the world (he didn't mention VCR tapes -- LOL -- but I suppose that a lot of people no longer have VCR's). The defendants did not contest the TRO -- the TRO said, "On consent, no undertaking is required for the T.R.O." Copies of the order are here and here.

The scope of copyright protection requested by the motion for a preliminary injunction is astonishing -- a prohibition of the defendants' use of any part of the song's music or lyrics in any medium. In contrast, the original complaint (at the bottom of this webpage) is aimed only at the use of the song in the movie. The TRO said,
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IT IS FURTHER ORDERED that defendants show cause before the Honorable Sidnet (sic) H. Stein, United States District Judge. . . on May _19_, 2008, at 4:30 p.m., or as soon thereafter as counsel may be heard, whay (sic) an order should not be entered . . .during the pendency of this action:

1. enjoining and prohibiting the Defendantys (sic), their officers, agents, servants, employees and attorneys and all persons in active concert and participation with them, from further use of any portion, or the music and lyrics, in any media, of the musical composition written by John Lennon entitled “Imagine”, or committing any further copright infringement with respect thereto (emphasis added)

The TRO said,

Defendants will produce the following documents on or before _May 6_, 2008: (i) a complete copy of the Movie, (ii) Defendants’ agreements, licenses and contracts with third parties in connection with rights and permissions for all musical compositions or “clips of third-party film or video footage, still photography, and any and copyrighted materials included in the Movie; (iii) documents and opinions obtained by Defendants in connection with their use of the song “Imagine” in the Movie which support any defense of fair use or first amendment; (emphasis added)

IMO the plaintiffs' only possibly legitimate gripe is that the defendants discriminated against them by not getting their permission to use "Imagine" while getting the permission of other copyright holders for use of other works in the movie. But whether that discrimination is unfair depends on how the other works are used in the movie -- for example, if the movie uses a song just for background music, of course the movie producers should pay a licensing fee to the song's copyright holders. IMO unfair discrimination in requesting and/or getting permission for use of copyrighted material should not by itself be considered grounds for a finding of copyright infringement -- requesting and/or obtaining permission should be considered courtesies where permission is not absolutely required.

Also, the TRO says,

IT IS FURTHER ORDERED, that answering papers, if any, shall be served upon Plaintiffs by hand delivering copies thereof to Plaintiffs counsel . . . .

IT IS FURTHER ORDERED, that reply papers, if any, shall be filed with the Court and served upon Dendants (sic) by hand delivering copies thereof to be retrieved by Defendants' counsel

I don't know why the judge required that service of papers be by "hand deliverying" them. Even ordinary mail is hand delivered. Does he mean Federal Express or something like that? Maybe he is just telling the parties not to use electronic transmission. I think electronic transmission is better because it is instantaneous and there is no need to scan documents into a computer.

(BTW, different courts use different terms for the titles of answering papers. "Reply" is often -- but not always -- used as a title for an answer to an answer. My first-ever answering brief was titled "Objection")

FRCP Rule 5 says,

Rule 5. Service and Filing of Pleadings and Other Papers

- - - - - - - - - - - - - - - - -

(2) Service in General.

A paper is served under this rule by:

(A) handing it to the person;

(B) leaving it:

(i) at the person’s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or

(ii) if the person has no office or the office is closed, at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there;

(C) mailing it to the person’s last known address — in which event service is complete upon mailing;

(D) leaving it with the court clerk if the person has no known address;

(E) sending it by electronic means if the person consented in writing — in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or

(F) delivering it by any other means that the person consented to in writing — in which event service is complete when the person making service delivers it to the agency designated to make delivery.

In the federal courts, service of papers (not counting the complaint and summons) by deposit in ordinary mail is normally allowed. However, to be on the safe side in my lawsuits, I usually served important papers by certified mail with a return receipt. At the time of my lawsuits, electronic transmission might not have been allowed and if it was allowed I was not aware of it and was not connected to the Internet at the time anyway.

BTW, IMO the rules should require that -- where appropriate -- the papers be served upon the parties as well as the parties' counsel. IMO it is insulting to the parties to assume that they are not interested in reading the papers.
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Message to Loco Bozo Oh-No-No: Era of silent films ended a long time ago

If a printed work had quoted the words "and no religion too" and commented about them, no one would question that the quotation is fair use. However, the words were quoted in a movie, and movies have soundtracks. Playing the segment of the song was appropriate for the medium. The era of silent films quickly ended after the 1927 release of Al Jolson's "The Jazz Singer." Yoko Ono's suit is an outrage.

Also, though I have been following this copyright infringement case for a long time, I have just learned that the movie actually makes a verbal commentary about the song -- previously I thought that all of the commentary was nonverbal and symbolic. The On The Cover Songs blog reported,
.

In the documentary Stein says: “Dr. Myers would like you to think that he’s being original but he’s merely lifting a page out of John Lennon’s songbook.” This is followed by an audio clip of Lennon’s song “Imagine,” specifically, the lyrics “Nothing to kill or die for, And no religion too.”

This verbal commentary greatly strengthens the claim of fair use -- the movie expressly critiqued the song. Bozo Oh-No-No is going to have a hard time explaining how this criticism in a movie is fundamentally different from criticism in print. Personally, though, I think that this comment about John Lennon and Sleazy PZ Myers is inane, and I think that it would be much better to allow the viewers to decide for themselves the significance of the song's words in relation to the accompanying scenes in the movie.

Of course, the scumbag Darwinists think that the harm to "Expelled" would be well worth the harm to the fair use principle if Yoko Ono wins her suit.

Anyway, I hope that Yoko Ono is taught that she can't always get her way just because she is rich and famous.
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John Lennon's no religion

As everyone knows by now, Loco Yoko Oh-No-No is suing the "Expelled" producers over the unauthorized use of a few seconds of John Lennon's song "Imagine" that include the words "and no religion too." In 1966, about five years before "Imagine" was released, John Lennon told a reporter something like the following statement, according to an article in IGN.com:

"Christianity will go. It will vanish and shrink. I needn't argue about that; I'm right and I will be proved right. We're more popular than Jesus now; I don't know which will go first -- rock and roll or Christianity. Jesus was alright but his disciples were thick and ordinary. It's them twisting it that ruins it for me."

I was aware at the time that a Beatle had said something like "we're more popular than Jesus" -- but I was not aware that the above statement would cause a furor. The IDG.com article continues,

The comments -- which apparently arose because Lennon was reading up on religion at the time of the original interview -- went largely unnoticed in the U.K., but in the United States them, apparently, are fighting words. When the quote was picked up months later in a teen mag called Datebook, the reaction was, shall we say, not the finest example of turning the other cheek . . .

. . . .Something of a witch-hunt did develop. Apparently spearheaded by disc jockey Tommy Charles of WAQY in Birmingham, Alabama, a "Ban the Beatles" crusade got underway, mostly in the American South. A group of radio stations refused to play The Beatles, and albums and other Beatles merchandise were destroyed in public displays of what some might describe as religious zealotry . . .

. . . on August 11, 1966, The Beatles held a press conference in Chicago and Lennon apologized. Sort of . .

Of course, things returned to normal for The Beatles shortly thereafter, and certainly their records were back in heavy rotation soon enough on the radio of the South -- Sgt. Pepper's Lonely Hearts Club Band was just a year away. But something had changed for the band, who would never tour again . . . "Yeah, I didn't want to tour because I thought they'd kill me," he said of the fracas years later. . . ."One night on a show in the South somewhere, somebody lit off a firecracker while we were onstage. And there'd been threats to shoot us, the Klan were burning Beatles records outside, and a lot of Klu Klux kids were joining in with them."

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Legal analysis of Yoko Ono's suit against "Expelled"

"Does anyone know the name of the law that applies to Yoko Ono's copyright-infringement lawsuit against the producers of 'Expelled'? Anyone? It's called the fair use law. Can anyone think of a good reason why the 'Expelled' movie's use of the song 'Imagine' should not be considered fair use? Anyone? Anyone? The answer is that there is no good reason."

-- "Expelled"s star Ben Stein as the boring economics teacher in the movie "Ferris Bueller's Day Off." "Anyone?" "Anyone?" when he lectured was echoed by "Bueller?" "Bueller?" when he called the roll. "Anyone? Anyone? Bueller?" has become a popular expression.

============================================================

I now realize that "symbolic speech" is the correct legal term for how "Expelled" uses the song "Imagine." The courts recognize symbolic speech as being speech for purposes of the First Amendment's free speech clause. It cannot be claimed that "Expelled" does not comment about the song just because the commentary is nonverbal. Correction: I have learned that the movie makes a verbal comment about the song.

Also, the complaint of Yoko Ono et al. -- at the bottom of this webpage -- does not even mention the fair use law, 17 USC §107, let alone try to show that this law is not satisfied by "Expelled"s use of "Imagine." Since the plaintiffs are essentially claiming that the "Expelled"'s use of "Imagine" does not satisfy the fair use law, then (1) either the plaintiffs should amend their complaint with arguments of how the fair use law is not satisfied or (2) the case should be dismissed because of lack of jurisdiction and/or failure to state a claim upon which relief can be granted.

The fair use law includes the following provisions:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

As I noted before, this is not a list of tests that must be passed but is only a list of factors that must be considered. Also, these factors are very general and subject to broad interpretations.

Here are my evaluations:

(1) the purpose and character of the use --

Symbolic or nonverbal commentary about song. The movie leaves it up to the viewers to decide for themselves the significance of the song's words in relation to the accompanying scenes of the movie. See correction above.

-- whether such use is of a commercial nature or is for nonprofit educational purposes

The movie is commercial rather than nonprofit, but that is far from being a fatal defect under the fair use law.

(2) the nature of the copyrighted work;

As a song that asks us to "imagine no possessions," it is arguably not even copyrightable. I go into a more detailed analysis about this in a previous post.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

This one's easy -- the movie uses only about 15 seconds out of a song of about 3 minutes in length.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Contrary to the plaintiffs' claims, the movie's use of the song does not imply approval or endorsement of the movie by the song's copyright owners. There should be no significant effect on the song's value or potential market.

The statement by some bloggers that Yoko Ono “sold out” to the “Expelled” producers — which BTW is a false statement which was even retracted — is not grounds for denying fair use. The defendants have an even better claim that they are being defamed by the lawsuit.

Also, no permission or request of permission is required for fair use.

I can’t find a copy of the complaint that Capitol Records and EMI Records filed in a separate action in a New York state court. A news article says that their claims are under New York state law, and I don't see how those claims can be applied outside the state of New York. The news article says,

On the same date, EMI Records Ltd. and Capitol Records LLC filed suit against the same defendants in the Supreme Court of the State of New York, alleging violation of their rights in the sound recording under New York state law.

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"Expelled" to be pro-bonoed by Stanford Fair Use Project!

A news article says,

Lennon’s widow Yoko Ono Lennon and sons Sean and Julian, along with EMI Blackwood Music, filed suit on April 22, 2008 claiming that Premise Media’s unauthorized use of “Imagine” violates copyright and trademark law. The suit, filed in the U.S. District Court for the Southern District of New York, alleges that Premise Media, C&S Production LP, Premise Media Distribution LP, and Rocky Mountain Pictures misappropriated the composition in violation of the Copyright Act, the Lanham Act, and New York state law. On the same date, EMI Records Ltd. and Capitol Records LLC filed suit against the same defendants in the Supreme Court of the State of New York, alleging violation of their rights in the sound recording under New York state law.

Premise Media contends it has the right to use the song under the fair use doctrine, which among other things permits the use of copyrighted material for the purpose of comment, criticism, and discussion.

“The right to quote from copyrighted works in order to criticize them and discuss the views they may represent lies at the heart of the fair use doctrine,” said Anthony Falzone, executive director of the Fair Use Project. “These rights are under attack here, and we plan to defend them.”

Falzone will serve as counsel on the case along with Stanford Law colleagues Julie A. Ahrens and Brandy Karl. The Stanford team will be joined by Roy Hardin and April Terry, partners at the Dallas office of Locke Lord Bissell & Liddell LLP. (emphasis added)

There is no question that Yoko and her coplaintiffs -- by trying to block the fair use of only about 15 seconds of a song -- are making war on the First Amendment.
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Some argue that this is not really fair use because "Expelled" does not verbally and explicitly criticize, comment on, or discuss the significance of the words in the song in relation to the accompanying scene in the movie. But the movie leaves it to the viewers to decide that significance for themselves. IMO, that is still fair use. It's like a political cartoon where interpretation of the cartoon is left up to the viewer. If the movie tried to explain the song's significance in the movie, the effect would be spoiled.

I said that the "Expelled" producers have a strong fair-use case -- and now some bigshot attorneys in the field agree! Am I a legal genius or what?

I am not surprised that the Stanford Fair Use Project decided to pro-bono "Expelled" -- I thought that they must have been hungry for a high-profile test case like this.

Here is a collection of Limericks about the lawsuits --

There once was a lady named Yoko,
who had a mind that was quite loco.
When she tried to sue,
she later did rue,
'cause the lawyers she faced were pro bono.

There once was a lady named Yoko,
who had a last name that was Ono.
Because of her fame,
she has a new name,
it's now Loco Bozo Oh-No-No.

The following two limericks were written by Jim Sherwood --

One Yoko, who's Loco, said "No!
I IMAGINE I'm losing some dough.
My only obsession's
With all the possessions
That Strawberry Fields can grow."

This is a reference to the fortune in free advertising that Yo-Yo Dodo Oh-No-No gets from the Strawberry Fields section of Central Park while she is too chintzy to allow a few seconds of fair use of "Imagine."

Said Yoko, "I'm free of all greed!
I IMAGINE, as Johnny decreed,
I'll let property go.
I'll go Loco, and know
How to peck with the birds, as they feed."

This is a reference to the pigeons that inhabit Strawberry Fields.

Here is a new stanza for "Imagine" --

Imagine there are no copyrights,
it isn't hard to do.
Nothing to cause court fights,
no reason for to sue.
Imagine all the people
staying out of court
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Proof that "Imagine" is not copyrightable

17 USC §107 says,

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Note that this is not a series of tests that must be passed -- this is just a list of factors that must be considered in determining whether a given use is fair use. Consider the second factor, "the nature of the copyrighted work." A stanza of the song says,
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Imagine no possessions
I wonder if you can . . .

. . . .Imagine all the people
Sharing all the world

So the song asks us to "imagine no possessions." Furthermore, the words "I wonder if you can" challenges us to try very hard to imagine that there are no possessions -- in fact, those words almost say, "I bet you can't do it." Also, while the song says that it is hard to imagine no possessions, the song also says that it is easy to imagine no Heaven and no countries:

Imagine there's no Heaven
It's easy if you try

-- and --

Imagine there's no countries
It isn't hard to do

The song also says, "Imagine all the people, Sharing all the world." So asking us to "imagine no possessions" is part of the very nature of the song. Hence, enforcing the song's copyright, which is a form of possession, would violate the very nature of the song. Hence, the song is not copyrightable.

Hat tip to William Dembski for suggesting that the song is not copyrightable.
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Bulldoze Strawberry Fields -- who in hell needs it

The Strawberry Fields Memorial in Central Park has the song's name "Imagine" at the center, as pictured above. The Strawberry Fields is a 2½ acre Central Park section that was donated by the city. There is a bronze plaque that lists the 121 countries endorsing Strawberry Fields as a Garden of Peace.

Unless Yoko places the song "Imagine" in the public domain, then NYC should (1) bulldoze and rename the Strawberry Fields section and (2) give back to Yoko the money -- adjusted for inflation -- that she donated for Strawberry Fields.

The thing has become a travesty. Enough is enough.

Protests may be sent to contact@centralparknyc.org

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Boycott John Lennon & Beatles products until Yoko Ono drops suit against "Expelled" producers

The name of the song is at the center of the Strawberry Fields Memorial in Central Park




The boycott would just be symbolic -- Yoko Ono is so rich from John Lennon's royalties that she wouldn't care about losing money.

The pettiness of Yoko Ono's nuisance suit against the "Expelled" producers over the film's use of just a few seconds of John Lennon's song "Imagine" is spoiling his legacy.

To those who agree with this boycott idea: please spread the word.

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Yoko Ono sues "Expelled" producers over "Imagine" song

A news article reported,

NEW YORK (Reuters) - John Lennon's sons and widow, Yoko Ono, are suing the filmmakers of "Expelled: No Intelligence Allowed" for using the song "Imagine" in the documentary without permission.

Lennon recorded the song in 1971 and in 2004, Rolling Stone magazine ranked it No. 3 on their list of the 500 Greatest Songs of All Time, according to the lawsuit.

Ono, her son Sean Ono Lennon, and Julian Lennon, John Lennon's son from his first marriage, along with privately held publisher EMI Blackwood Music Inc filed suit in U.S. District Court in Manhattan seeking to bar the filmmakers and their distributors from continuing to use "Imagine" in the movie.

They are also seeking unspecified damages.

Another news article reported that Ono complained that bloggers accused her of "selling out" to the "Expelled" producers. An earlier article about the dispute -- published before the announcement of the lawsuit -- is here.

The "Expelled" producers have a good fair-use case against Ono. The film uses under 25 seconds of the song. The Stanford Law School's Fair Use Project says,
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STANFORD, Calif., February 27, 2007—The Fair Use Project of the Center for Internet & Society at Stanford Law School announced that it has teamed with Media/Professional Insurance and leading intellectual property attorney Michael Donaldson to provide critical support for documentary filmmakers who rely on the “fair use” of copyrighted material in their films. . . .

“Documentary filmmakers who use copyrighted materials in their work under the ‘fair use’ doctrine of copyright law have come under tremendous pressure in the face of demands for huge licensing fees from copyright holders and overly-aggressive enforcement of copyrights,” explained Lawrence Lessig, founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford Law School.

“The mere threat of a lawsuit can keep an important film on the shelf for years,” Lessig said. “This has been a tremendous problem for documentarians because their films depend on the inclusion of copyrighted material they seek to comment on, discuss, and contextualize.”

In order to help solve this problem, the Fair Use Project has announced that it will agree to provide pro bono legal representation to certain filmmakers who comply with the Documentary Filmmakers’ Statement of Best Practices in Fair Use [see below] published by the Center for Social Media at American University (www.centerforsocialmedia.org/fairuse). Accordingly, the filmmaker will have counsel in place prior to the release of the film should the filmmaker face claims of copyright infringement. Media/Professional, in turn, will provide insurance coverage against copyright infringement liability in the event the filmmaker proves unsuccessful in defending the claim. In situations where the Fair Use Project is not in a position to promise pro bono representation, Donaldson and other leading intellectual property attorneys will be available to defend claims at favorable rates.

Documentary Filmmakers’ Statement of Best Practices in Fair Use says (page 6 of pdf file),

QUOTING COPYRIGHTED WORKS OF POPULAR CULTURE TO ILLUSTRATE AN ARGUMENT OR POINT

DESCRIPTION: Here the concern is with material (again of whatever kind) that is quoted not because it is, in itself, the object of critique but because it aptly illustrates some argument or point that a filmmaker is developing — as clips from fiction films might be used (for example) to demonstrate changing American attitudes toward race.

PRINCIPLE: Once again, this sort of quotation should generally be considered to be fair use. The possibility that the quotes might entertain and engage an audience as well as illustrate a filmmaker’s argument takes nothing away from the fair use claim. Works of popular culture typically have illustrative power, and in analogous situations, writers in print media do not hesitate to use illustrative quotations (both words and images). In documentary filmmaking, such a privileged use will be both subordinate to the larger intellectual and artistic purpose of the documentary and important to its realization. The filmmaker is not presenting the quoted material for its original purpose but harnessing it for a new one. This is an attempt to add significant new value, not a form of “free riding” — the mere exploitation of existing value.

Yoko Ono, despite getting $20 million a year from John Lennon's royalties, is extremely tightfisted about his copyrights. She is also in a dispute over the copyright of a film about John Lennon.
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