Drawing for free Expelled DVD's

To enter, go here.

Now I just need to get a DVD player.

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"Imagine" segment of "Expelled" DVD self-censored by distributor

Sadly, Anthony Falzone of the Stanford Fair Use Project reported that the segment of the "Expelled" DVD with John Lennon's "Imagine" song was self-censored by the distributor because of the now-withdrawn copyright lawsuits that were hanging over the movie:

After both the state and federal courts rejected the attempts of Yoko Ono Lennon and EMI Records to enjoin the showing of Expelled: No Intelligence Allowed on the ground it used a 15-second fragment of John Lennon's Imagine, all of the plaintiffs in both cases have now withdrawn their claims and dismissed their cases.

This is the right result to be sure. There should never have been any doubt the filmmakers who were sued here had every right to use a short segment of a song for the purpose of criticizing it and the views it represents. But the right result came far too late. The mere pendency of these cases caused the film's DVD distributor to shy away from releasing the full film -- the version that includes the Imagine segment. So the film goes out on DVD on October 21 in censored form, illustrating the damage that even an unproved and unsupported infringement claim can do.

It is not clear whether the video scenes were cut or just the soundtrack was cut, and I will try to find out.
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The fundies are one of the biggest markets for the "Expelled" DVD -- the ad for this DVD on the Answers-in-Genesis fundy creationist website is especially enthusiastic about the movie [1]. I presume that the "Imagine" segment was one of the fundies' favorite parts of the movie, so the DVD's omission of this segment will be a big disappointment for them. Darwinists are still moaning that the plaintiffs in this lawsuit are the victims, but the real victims are the defendants. There was extra damage to the defendants because the plaintiffs continued these lawsuits long after it became obvious that these lawsuits were not going anywhere. Darwinist bloggers are to blame because they accused Yoko Ono of "selling out." Even if she had licensed or released the song to the "Expelled" producers, would that have been so terrible? It is wrong to assume that allowing a copyrighted work to be borrowed by another work implies endorsement of the borrowing work.
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Yoko Ono, record companies drop suits against "Expelled"

Great news! Both the federal-court and state-court copyright infringement lawsuits against Premise Media, the producer of the movie "Expelled," have been dropped.

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.

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"Expelled" movie DVD ad on Answers-in-Genesis website

Some young-earth creationists are unfriendly towards Intelligent Design and other scientific criticisms of evolution because they regard them as sort of blasphemous suggestions that the word of god needs scientific support. However, Answers-in-Genesis, a YEC website, often uses scientific arguments against evolution and sells Michael Behe's ID book "Darwin's Black Box" and the DVD of Ben Stein's ID movie "Expelled: No intelligence allowed." AiG's ad for the "Expelled" DVD is especially enthusiastic:

Special pre-release SALE! Get everyone you know to view this eye-opening documentary. Host a video party at your home! Order now to receive it immediately upon its worldwide release! (Ships beginning October 21)

The lie of evolution must be exposed!

The message of this top-quality expose' will both enthrall and shock you. Ben Stein's amazing, much-discredited (by evolutionists!) documentary is worthy of an Academy Award(R). But it will never receive one, because it reveals that America is losing some of its most important freedoms (academic freedoms, especially in tax-supported institutions) because of what atheistic evolutionists are doing. You will be astounded at what they have already done to squash educational freedom and mock God . . . . .
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A very popular “evolution-busting” tool to expose the lack of academic freedom in America’s schools today, we urge you to use it as a powerful resource for outreach. This film is an excellent springboard to tell people who the real intelligence behind the universe is: the Creator God of the Bible. Buy an extra copy and tell your pastor that the whole church—including the teens—must see it!

Professional review

“Expelled is a highly entertaining and riveting documentary . . . it’s one of those rare films that I urge you not to miss.”
— Ken Ham, CEO/President of Answers in Genesis–USA

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Yoko v. Expelled federal lawsuit drags on

I reported in a recent post that the state court copyright suit is continuing, with a denial of a preliminary injunction but a requirement that the defendants answer the complaint. Only the record companies are plaintiffs in the state court suit.

I mistakenly thought that there was a final decision in the federal case last month, but the July 17 report of what I thought was the final decision turned out to be a grossly overdue report of the June 2 denial of a preliminary injunction. I thought that the case was virtually over when the motion for a preliminary injunction was denied. The opinion denying a preliminary injunction was 23 pages long -- far longer than what this frivolous lawsuit deserved -- and appeared to thoroughly cover all of the issues. There did not seem to be much to add. Now I find a July 1 court order that says, "The last day for the completion of all discovery except expert discovery is October 31, 2008." What in the hell is there to discover? The facts of the case were never disputed -- the only issues are conclusions of law. A collection of documents in the case is here (continued below the fold).
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As I have said many times, judges make time for high-profile cases by giving short shrift or no shrift to low-profile cases. In judges' allocation of time to different cases, the losses of the many fund the payoffs for the lucky few, just like at any honest racetrack. The courts should place strict limits on the amount of time that judges may spend on individual civil cases. The courts have page and/or word-count limits on the lengths of briefs (these limits can be exceeded with permission of the court), so why not limit the amount of time that judges can spend on individual civil cases? I propose that plaintiffs be charged high extra fees when such time limits are exceeded and that those extra fees be used to pay for hiring more judges and magistrates and to assist pro se litigants.
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Imagine -- "Imagine" copyright suits are not over

This blog has a total of 29 articles (counting this one) about the federal and state "Imagine" copyright suits under the following two post-label lists (I am limited to a maximum of 20 posts per label): here and here.

A news article reported that the judge in the state court suit has (1) denied the plaintiffs' motion for a preliminary injunction and (2) required that the defendant answer the complaint. The ruling is here.

I thought that this whole thing was essentially over when the federal judge denied the motion for a preliminary injunction. I felt that the federal judge's final decision in favor of the defendants was so anticlimactic that I did not even report it on this blog. (there is no final decision yet in the federal court case -- the Uncommon Descent article and the linked press release, both dated July 17, were just greatly overdue reports of the June 2 denial of the motion for a preliminary injunction)
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Actually, because the US Constitution gives Congress jurisdiction over copyrights and interstate commerce, I question the authority of a state court to take any kind of action to enforce a copyright, including any action that applies just to a state.

The name "supreme court" here is a misnomer -- this state court is a trial court of original jurisdiction.

Yoko Ono & sons were plaintiffs in the federal suit but not the state suit -- here the plaintiffs are just Capitol Records and EMI records. I don't know if the federal court decision has been appealed -- one probably needs a PACER account to find out.

Also, I wonder why the article did not mention the federal court suit. Also, the state court ruling did not mention the federal court suit. The new Rule 32.1 of the Federal Rules of Appellate Procedure requires all federal courts to allow citation of unpublished opinions (I presume that the final opinion of the federal case is unpublished), but I don't know the citation rules of the NY state courts.

Also, the title of the news article, "Sampling a song can be fair use, rules US court," is wrong -- it is a state court, not a US court.

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.

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 --

Thanks to Uncommon Descent for the tip.
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Can Yoko sue "Expelled" under foreign copyright laws?

Famous last words (is he saying "I don't deserve to die" or "I could have kept myself out of this chair if I were a lawyer"?)

A coin-operated, do-it-yourself electric chair. "When a coin is inserted, and the switches are pulled, the condemned man twitches and jerks in the chair. Sparks fly and the odor of burning hair is emitted from the panel."

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

As a result of the lifting of the temporary restraining order in the federal lawsuit against "Expelled," the way is now clear for the movie to open as scheduled in Canada on June 6. Some people are now asking if Yoko can sue the "Expelled" producers under copyright laws in foreign countries.

You will never see me say "I am not a lawyer," often abbreviated "IANAL." In fact, the expression "IANAL" is one of my pet peeves. Telling laypeople that they can't understand the law sends a message to young people that they shouldn't bother to get educations. When I don't know something about the law, I look it up, just like a lawyer would.

Wikipedia says about the Berne Convention,

The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement about copyright . . .

Since almost all nations are members of the World Trade Organization, the Agreement on Trade-Related Aspects of Intellectual Property Rights requires non-members to accept almost all of the conditions of the Berne Convention.

As of April 2008, there are 163 countries that are parties to the Berne Convention

The Berne Convention requires its signatories to recognise the copyright of works of authors from other signatory countries (known as members of the Berne Union) in the same way it recognises the copyright of its own nationals, which means that, for instance, French copyright law applies to anything published or performed in France, regardless of where it was originally created.

The USA became a member of the Berne Union in 1989.

One of the questions that arises is: if "Expelled" is shown or sold in a foreign country, does that country's copyright law apply just to the movie itself or does it also apply to copyrighted works contained in the movie?

I investigated further by looking at the provisions of the Berne Convention.

Articles 5(1) and 5(2) says,

(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

One of "the rights specially granted by this Convention" is "fair use." The applicable parts of Article 10 [Fair Use], say,

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

- - - - - - - -

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon.

Article 10, quoted above, says nothing about applying a foreign country's laws to claims of fair use -- all that is required is that the borrowing of other works be "compatible with fair practice" and that the extent of the borrowing "does not exceed that justified for the purpose." "Expelled"s use of "Imagine" easily satisfies these criteria -- if "Expelled"s use of "Imagine" is not fair use, then nothing is fair use. Also, it is reasonable to expect that countries should give "full faith and credit" to the originating country's determination of fair use, because otherwise chaos would result. Also, Article 10(3) above is satisfied by the credits shown at the end of the "Expelled" movie.

Article 6bis says,

(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

"Expelled" did not distort, mutilate, or otherwise modify "Imagine." As for "other derogatory action," "Expelled" did not misrepresent John Lennon's actual views, particularly in view of John Lennon's statement -- made several years prior to recording "Imagine" -- that the Beatles were "more popular than Jesus."

Article 19 [Right to Claim Greater National Protection] says,

The provisions of this Convention shall not preclude the making of a claim to the benefit of any greater protection which may be granted by legislation in a country of the Union.

I think that the above loophole would be unavailable to Yoko Ono in all or almost all foreign countries because all or almost all foreign countries would consider this to be fair use. Also, this loophole appears to contradict Article 5(2) -- cited above -- in regard to fair use. And under Article 33 [Disputes among countries], the USA may be able to dispute another country's finding that this is not fair use.

In short, IMO Yoko Ono cannot dispute "Expelled"s fair use claim in foreign countries.
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Update on state court suit against "Expelled"

The On the Cover Songs blog reports that the defendants have moved for dismissal of the complaint in the state-court suit against "Expelled." The oral hearing on the motion is scheduled for June 9. The plaintiffs in the state court suit are EMI Records and Capitol Records, not Yoko Ono et al.. As I noted before, the name of the court, Supreme Court of the State of New York, is a misnomer -- this is a trial court of original jurisdiction.

The case documents show that no temporary restraining order was issued in state court (the federal-court TRO has now been lifted). Actually, because the US Constitution gives Congress jurisdiction over copyrights and interstate commerce, I question the authority of a state court to take any kind of action to enforce a copyright, including any action that applies just to a state.

Unlike in federal courts, a PACER account is not needed to view at least some of the case documents in this state court (some federal court decisions can be viewed without PACER if the court chooses to post them). I don't see the reason for the following rule: "Except in matrimonial cases, . . . .judgments are not entered by the County Clerk until an attorney for a party to the case appears at the Judgment Clerk's desk (Rm. 141B at 60 Centre Street) and requests entry."

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Judge expels Yoko's suit against "Expelled"

JUDGE GIVES TWO THUMBS UP FOR FAIR USE

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In a 23-page opinion, a federal judge has denied Yoko Ono et al.'s motion for a preliminary injunction against the producers of "Expelled" for alleged infringement of the copyright of the song "Imagine." We have not yet heard from the state court judge but I expect him to follow suit.

The ruling is hardly surprising -- Yoko et al. had a very weak case. The only thing that I was worried about was the claim that the movie producers discriminated against "Imagine" because they paid licensing fees for other music in the film, but the judge dismissed that claim.
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Though this ruling is only on a motion for a preliminary injunction, for all practical purposes it is a final ruling -- all significant issues have been thoroughly addressed and there are no additional facts to discover. Yoko et al. can appeal, but IMO they would be wasting their time -- they lost on all of their claims in the district court. They could still lose an appeal even if they win some of their claims.

The Darwinists' invective against the "Expelled" producers for using the song without permission was incredible -- for example, Josh Rosenau, who is on the staff of the National Center for Science Education, titled a post on his Thoughts from Kansas blog, "Expelled steals from the dead".

My prediction that the judge's opinion would be a 100-page dissertation was not far off the mark -- it was 23 pages (actually only about 22 pages if the heading and signature section are subtracted). That is a lot more than I got in my lawsuit against the "smog impact fee" -- I got no oral hearing and no written opinion, even though my argument against defendant California -- that the state lost its federal-court tax-suit immunity by "leaving the sphere that is exclusively its own" (Parden v. Terminal Railway of the Alabama State Docks Dept.) by basing the fee entirely on the state's special status under federal auto emissions laws and regulations -- was so airtight that the state's attorney did not even attempt to answer it.

Comments about the ruling may be left at the following websites: Panda's Thumb, Wall Street Journal Law Blog. I will add other sites that allow commenting when I find them --

Lessig Blog
Pharyngula
Uncommon Descent
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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:
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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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Defense briefs in "Imagine" suits

Time is running out for decisions on whether to issue preliminary injunctions in the lawsuits against use of the song "Imagine" in "Expelled." I was sure that there would be decisions this week, but this week has come and gone. If the temporary restraining orders in the lawsuits apply to Canadian theatres, then the judges need to either poop or get off the can very soon because the movie is scheduled to open in Canada on June 6 and the theatre owners need to know very soon. How in the hell can the theatres even advertise "Expelled" as a coming attraction if they don't know if it can open on schedule.

While waiting for the decisions of the courts, I decided to while away the time by commenting on the defense briefs. The federal-court defense brief is here and the state-court defense brief is here. Many of the arguments are the same in both briefs. I will just comment on the state-court brief here -- I may comment on the federal-court brief later.

The state-court defense brief says,
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Plaintiffs impliedly acknowledge the First Amendment necessity of the fair use defense by asserting fair use "subsumes and supplants independent First Amendment analysis." Pl. Memo at 9 n. 3. This is simply another way of saying that fair use protection is essential to keep common law copyright protection from triggering First Amendment concerns. (page 15 of pdf, page 9 of document).

I disagree with both the plaintiffs and the defense here. As for the plaintiffs' statement, there is of course no "independent" First Amendment analysis because that analysis must be part of or incorporated into the fair use analysis. As for the defense statement that fair use protection prevents copyright protection from "triggering" First Amendment concerns, of course attempts to enforce copyright protection trigger First Amendment concerns unless there is blatant market-substitution.

Also, the state-court defense brief has a lot of argument that "Expelled"s use of "Imagine" is "transformative." However, to me the term "transformative" means that the borrowed work is altered, and "Expelled" did not alter "Imagine." My interpretation of "transformative" is supported by a footnote in the brief:

In Campbell, the US Supreme Court explained that Sony's presumption of market harm is limited to situations where the secondary work "amounts to a mere duplication of an original" and does not apply to situations where "the second use is transformative." Campbell, 510 U.S. at 591. (footnote, page 23 of pdf, page 17 of document)

The plaintiffs have their own strange meaning of "transformative":

Plaintiffs contend transformation turns on whether using "copyrighted material was necessary to the asserted purpose of criticism [or] comment" and go on to observe that it was not strictly necessary to use the clip of Imagine in the Film.(page 19 of pdf, page 13 of document)

"Not strictly necessary"? King Lear said in Shakespeare's play,

O reason not the need! Our basest beggars
Are in the poorest thing superfluous.
Allow not nature more than nature needs,
Man's life is as cheap as beast's. Thou art a lady:
If only to go warm were gorgeous,
Why, nature needs not what thou gorgeous wear'st,
Which scarcely keeps thee warm. But, for true need--
You heavens, give me that patience, patience I need.
You see me here, you gods, a poor old man,
As full of grief as age, wretched in both.

The state-court defense brief says,

Plaintiffs also complain the public is confused about whether Imagine was licensed for use in the Film, and this confusion is causing harm to its reputation based on accusations from internet bloggers that Plaintiffs "sold out" the legacy of John Lennon by permitting it to be used in the Film . . . . But any such "confusion" was the result of false accusations by internet bloggers, which was corrected in any event. See McMullan Dec. Ex. A (Wall Street Journal story stating filmmakers did not have permission to use the song). Any harm those false accusations created was inflicted by the authors of them, not Defendants, and Plaintiffs fail to explain how the injunction they request would undo that harm in any event. It is simply not Defendants' fault that bloggers do not understand the law permits some unlicensed uses of copyrighted material, and this fact should neither undermine Defendants' rights nor support an injunction pending the resolution of those rights in this dispute.(pages 27-28 of pdf, pages 21-22 of document)

The plaintiffs did not claim that the false accusations by the internet bloggers were the sole cause of alleged harm to reputation -- the plaintiffs also claim that listing "Imagine" in the credits at the end of the movie also gives the false impression that permission to use the song was granted.

The plaintiffs' claims of damage to reputation might have some validity if protecting reputations of songs and songwriters were one of the purposes of copyright law, but as I show here and here, that is not one of the purposes of copyright law.

As for the statement "It is simply not Defendants' fault that bloggers do not understand the law permits some unlicensed uses of copyrighted material," there is a strong possibility that these unscrupulous BVD-clad bloggers were aware of this but just didn't care whether their accusations were true or not. Congress is poised to grant the "reporter's privilege" to these same unscrupulous BVD-clad bloggers.

Also, if the courts accept this argument about alleged damage to reputation, that would mean that the courts accept the idea that giving permission to use a copyrighted work can properly be interpreted as endorsement of the borrowing work, and IMO that is a very bad idea.
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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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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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State court judge extends TRO against "Expelled"

I previously reported that in addition to the Yoko Ono v. Premise Media suit in federal court, EMI Records and Capitol Records filed a copyright infringement suit against the same defendants in a state court. The name of the state court, New York Supreme Court, is a misnomer -- it is actually a trial court of original jurisdiction.

The more closely watched of the two suits is the federal suit. In that suit, a hearing on a motion for a preliminary injunction was scheduled for May 19 and I still have not seen any news about a decision. I am thinking of getting a PACER account so that I can follow court actions directly.

Meanwhile, the Wall Street Journal has reported that the judge in the state court suit decided to extend the terms of a temporary restraining order against "Expelled" -- I presume that the terms of this TRO are the same as the federal court's, i.e., (1) no new theatres and (2) no production or distribution of video recordings. The WSJ article says,
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Lawyers from both sides have declined to comment, but Columbia copyright guru Tim Wu told us this: “I don’t think this is a hard case; nor a close case. Playing 15 seconds of a song to criticize it is as fair as fair use gets. With respect to Yoko Ono: if this case isn’t fair use, then copyright law has become censorship law.”

But in the state court PI hearing this morning, Judge Richard Lowe wasn’t nearly as convinced as Professor Wu. Judge Lowe asked Falzone why it was necessary to use Lennon’s actual performance of the song, rather than, say, having Stein say the lyrics himself or flashing the lyrics on the screen. To this, Falzone gave what we thought was a compelling and novel reply. Lennon’s performance, said Falzone, triggers a specific emotional response in the viewer’s mind — i.e. “Maybe Lennon’s right; maybe the world would be better off without religion” — and it’s that response that the film, and its use of “Imagine,” seeks to criticize.

IMO attorney Falzone's answer to the judge's question is weak. My view is that playing the song excerpt was appropriate for the medium, film -- the era of silent films ended 80 years ago. Playing the song is much more attention-getting to bored and dozing viewers than merely reciting or displaying the words.

Also, this is only a state court, so I wonder how far its jurisdiction extends. Actually, IMO, copyright law and court actions should be considered to be pre-empted by the federal government, because of the following constitutional provisions:

(1) Article 1, Section 8

The Congress shall have power to . . .

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries . . .

(2) Article III, Section 2

The judicial power [of federal courts] shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States . . .

(3) Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Since copyright regulation was delegated to the United States by the Constitution, the Tenth Amendment says that the right to regulate copyrights is not reserved to the states. Also, copyrights involve interstate commerce, which is another area of regulation that the Constitution delegated to Congress.

There is something called the "dormant" commerce clause, which is the presumption that the Constitution, by delegating interstate commerce regulation to Congress, implicitly prohibits the states from regulating interstate commerce without approval from Congress. So maybe there should also be a "dormant" copyright/patent clause.

IMO "Expelled"s verbal comment about "Imagine" is inane -- saying that Sleazy PZ Myers was not being original but was borrowing a page from John Lennon's playbook -- but it is still fair use.
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