This is actually somewhat interesting, and I’m not going to reject all of it out of hand. The Fair Use Project of Stanford Law School is going to defend the use of Lennon’s song “Imagine” in the movie Expelled.
On the one hand, they are using a very short clip — and I am not a fan of the kind of draconian enforcement of every second of a song that the music industry seems to favor. There are reasonable grounds for fair use of short clips of music … the question is whether this is one of those cases.
On the other hand, I think Premise is horribly dishonest, and this press release is personally obnoxious to me (which is not actionable, of course … it merely diminishes the Fair Use Project’s credibility when they so readily buy into some of the phoniness Premise is pushing.)
The producers of “Expelled” spent two years interviewing scores of scientists, doctors, philosophers, and public leaders, including University of Minnesota biology professor P.Z. Myers, who does not support alternative theories of evolution. 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.”
“We included the ‘Imagine’ clip not only to illuminate Ben Stein’s commentary but to criticize the ideas expressed in the song,” says Logan Craft, chairman and executive producer of Premise Media.
There’s a lot to object to there.
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It is not true that I do not support alternative theories of evolution. I do. However, I expect alternatives to be backed up by evidence; I reject the fact-free, useless nonsense of Intelligent Design, which is not the same as being close-minded, as this P.R. implies.
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Stein’s commentary is ludicrous. I did not claim originality, so accusing me of doing so is false. Lennon’s song is also not relevant to what I said; I had just said that science erodes religious belief, and that the atheist goal is not the elimination of religion, but a reduction of its impact in secular functions, like government (my infamous comment about ‘knitting’). Imagine says nothing about science, or knitting for that matter. The song actually doesn’t follow from what I was saying.
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The claim that they were commenting on the ideas in the song is false. This movie was not about how artists are excluding creationists from their discipline, but about scientists. The song doesn’t discuss science or creationism or the academy, any of the themes of the movie. It’s just a pretty and extremely recognizable popular melody; they are using it as background music to a series of images that they want to use to generate a negative emotional response to my argument. They could have used any music and still made the same point.
So, really, what I detest is that, as usual, Premise Media is lying. Their rationalizations are completely bogus.
If they’d been more honest, though, and were simply arguing that, hey, a quick 15 second clip of a popular song ought to be acceptable use, I’d be sympathetic (now maybe an artist with a more personal appreciation of the ownership of an artistic creation would differ…), but they just don’t seem to be able to do that. They’ve got a compulsion to lie and try to claim that they were directly addressing John Lennon’s work, which they most clearly were not doing.
Of course, if they were capable of honesty, their movie wouldn’t exist.
I don’t know the details of fair use, so I won’t presume to comment on the legality, but I do think that the commercial usage should play a heavy part in the judge’s ruling. If this were just some vlogger using 15 seconds in a youtube video, that would be one thing, but in this case it’s in a slickly produced, commercial film. To my common sense (again, lacking any basis in legal knowledge) it seems like a fairly important difference. (Also, just personally, I’m rather offended by the way they’ve misappropriated Lennon’s message in this song. It’s certainly somewhat over-simplified, but it’s a pop song, not an analytical essay. How would, “Nothing to kill or die for, and no religion — and I’m not talking about Stalinism since the cults of Lenin and Stalin were actually pseudo-religions in and of themselves and very dogmatic, and by the way, the majority of Nazis were religious, Gott mit Uns, etc — too…” sound in a catchy tune? Not very good, I would imagine.
And on the subject of imagination, and music…I like to imagine overlaying these words to the Battle Hymn of the Republic whenever Stein talks about how the compassion and love of God makes us good, kind people (whereas science leads to killing people):
Well, if you play with the words a bit —
Imagine there’s no heaven
It’s easy if you knit
No hell below us
We’ve all become atheists.
Imagine all the people
Doing science in the lab!
The knit/atheists rhyme’s a bit shoddy, but it was the best I could do…I’m no Cuttlefish.
PZ, I have an amateur/atheist interest in biology and evolution, and that’s why I come here, but you’re out of your league here.
You’re going to the Ironman movie now, right? Before that was released, the hot trailer on the ‘Net had a whopping 4 seconds of the signature lick from Black Sabbath’s tune of the same name, right at the end of the trailer.
Gee… ‘ya think the studios paid for that? Right, they did. Study up on copyright law and fair use and all the relevant court cases, before making statements like that, unless you want to mimic the creationists who question evolution without reading the core texts in the field.
I made a living from copyrighted material my whole life as a creative artist (mostly visual arts), and even though it’s the flavor of the month to assume all this creative effort is “free”… it isn’t. At least not yet.
Ok…I just listened to 15 seconds of several songs at random on my iTunes shuffle and I’ve got to say…just based on the subjective experience of listening, I’d say 15 seconds ain’t trivial. There’s quite a lot of music going on there. (And in fact, in my occasional ventures into composition for my school’s fine arts requirement, it’s taken me about 5 hours to write a simple little 90 second melody — that’s almost an hour for 15 seconds. And it wasn’t even very good. And that doesn’t include the time/$ for performers, a studio, etc…)
Um, what conceivable relationship does this have to what he said? Are you arguing that the status quo of law and business practices is invariably and by definition right?
@foldedpath #3:
To be fair, “be sympathetic” doesn’t mean “condone”. I would be sympathetic as well, but unless an artist chooses to release that work for free use (as some have) then I really do believe he or she should be able to make copyright claims. The difference, though, is between some kid having fun and not making money on YouTube and a film producer who could pay for the use and consider it an investment. Even if the producers of some hypothetical film were some of the most honest people alive and genuinely did not know that use of a song wasn’t covered under Fair Use, we might have sympathy for them – but we would also expect them to have done their homework since they are out to make money.
Maybe one of these days we’ll figure out how to let artists make money without having to resort to treating people like criminals, but until then it’s always a judgment call – which I think was the point in the first place.
@#3 foldedpath —
As I have mentioned before, I know very little about fair use doctrine, but based on my limited knowledge and my reading of the article, I imagine (bad pun) that the argument that the Stanford people will make is that it isn’t just the time, it’s the fact that the Expelled people are trying to critique the ideas expressed therein. In the article, they are quoted as saying:
I’m not really cleared whether “quoting” can really translate to “replaying the song” here, nor even on whether any of this is legally grounded, but in any case I don’t really see why they couldn’t have just quoted the lyrics in Stein’s droning, monotonous voice. It would have probably been less likely to spur litigation, and couldn’t have made an awful film much worse.
(Incidentally, I would disagree that this could be covered under fair use since this was unambiguously commercial exploitation; I suppose you might be able to argue that they’ve twisted the implied meaning of the song so much that, in the context they used it, it’s “significantly transformative,” though.
I agree that there are sound, intelligent arguments against sympathizing with or condoning Premise’s usage. Foldedpath’s comment was not one of them.)
@#8 Azkyroth —
No, no, it was critique! Critique, critique, critique! (This is what the Stanford people will be claiming anyway.)
This is a general pattern in the Expelled saga — masking opportunistic exploitation and twisting of various things (statements by biologists, humanistic songs, the Holocaust, “explusions” of “scientists”, etc) by pretending to actually be interested in exploring and critiquing them (best exemplified in the e-mail PZ and others received about “Crossroads”).
I’m wondering if the Stanford people are really buying the critique thing, or if they just see a chance to be involved in a somewhat high-profile case.
Just out of curiosity (genuinely): Are there any proper, scientific, viable, alternative MODERN theories of evolution?
If so, what are they??
@#10 shonny —
I think PZ may be talking about alternative hypotheses about the mechanisms of various aspects of evolution that are currently being debated amongst scientists — things like the neutralist-selectionist debate re: molecular evolution, of which Graur & Li said in 2000:
:) The debate is indeed still going on, and the title prediction Graur & Li made has been demonstrated as recently as just this year, in a paper entitled “Toward a Selection Theory of Molecular Evolution”. It seems clear (to me anyway) that the mechanism of molecular evolution is probably some combination of neutralism & selectionism, but the frequency/contribution of each type is still under a lot of debate.
When the revolution comes, the bourgeois selectionist capitalist pigs will be the first against the wall!
Sorry. It’s all the Stalinist rhetoric. I think it’s starting to get to me.
Thanks Etha,
But that was not what I had in mind, – more if there are other scientific theories about life on earth out there that are not under the aegis of Darwin’s.
Did a google, and nothing came up, so . . . Darwin rules :^)
So, PZ, do you expect to be called by the prosecution?
They are wrong, they are liars, they are deceptive and immoral creeps. But I’m not sure they should be stopped from using the song. Just because we don’t like their choice of how to employ “fair use” doesn’t mean they shouldn’t be able to do it.
But I guess it’s up to the court to determine if they meet whatever criteria fair use requires.
#1:
Actually, I disagree. The “fair use” formulation is pretty reasonable here; the point about “fair use” is not whether the use is commercial or not. Given that they’re trying to invoke the “commentary or criticism” angle, it’s particularly important as to whether they are in fact legitimately critiquing the work from which they copied.
This is not a triviality: a commercial production should legitimately be able to incorporate sufficient excerpts of some other work which it seeks to criticize or comment upon for that purpose. On the other hand, non-commercial copying of some work for no purpose other than not to pay the author is not ok.
So here we find the producers of “Expelled” tying themselves in knots trying to pretend that the use of “Imagine” was for the purpose of criticizing the work “Imagine”, which it very plainly wasn’t. Unless they can make that argument fly in court (and that should be entertaining) it would appear that they simply appropriated the work for their own purposes without paying for it. Whether or not the use was commercial has no bearing on that question…
Yes, until the courts (at least here in the USA) rule otherwise. The ability to license creative works through copyright law is how some of us pay the mortgage, and raise our kids.
The legal status of this stuff isn’t that obscure. Look it up. It’s a lot easier to understand than most things discussed here.
You know, you atheist-scientist Nazis are being completely unfair. Ben Stein would have ABSOLUTELY paid for the 15 seconds if he felt it wasn’t acceptable use. Just like he gave XVIVO credit for The Inner Life of the Cell…
“That the creationists have resorted to this subversion should surprise none of us, for the ethical poverty of their actions matches the intellectual poverty of their beliefs.”
– Peter Atkins
The useful thing about Fair Use is that you can invoke it even over the objections of the copyright owner. This why PZ can post clips from the promotional DVD of Expelled. The use of Imagine may well fall into fair use, which is not determined by whether a film is commercial or not but by a multivariate four factor test.
It behooves us to support fair use since it is such a useful tool for criticizing creationist nonsense. It is much more effective to show photos and clips of Stein making a fool of himself than just to describe it. We need fair use, so reflexively denying it to the scum at Premise is shooting ourselves in the foot and is a move that could easily haunt us in the future if Fair Use rights are eroded..
I’ve been saying this for a long time, and I’m glad the Stanford Project people are taking it up. I agree with their analysis (or, since I went public first, they agree with mine) … although the point doesn’t seem to be controlled by any binding precedent.
PZ, it in no way diminishes their credibility; on the contrary, it increases their credibility that they are prepared to act for a client that is pretty shonky, but is (at least very arguably) in the right on this specific issue. It makes them look all the more as if they are principled, which is what their peers in the legal profession and the law schools will care about.
Come on people, don’t lose track of the larger issues of jurisprudential principle just because the Stanford Project’s clients are (in other ways) the bad guys.
Good for the Stanford Project for taking on this case. Let’s see this point tested in the courts and determined one way or the other.
I also think those of us who are uppity atheists would look more principled if we always defended our opponents’ rights. In my case, I really do care about fair use of copyrighted material, even when the use is made by the Expelled folks, for whom I have no love at all. We should be principled in this way, rather than cutting our positions on public policy issues, such as overreaching copyright law, in accordance with expediency or emotion. In fact, being principled on the policy issues that matter to us should be a key element in our strategy to be taken seriously in the formulation of policy.
Similarly, I supported Catch the Fire Ministries, here in Victoria, when it was accused of religious vilification of Muslims, even though I am no fan of Catch the Fire Ministries or any other fundamentalist pentecostal group.
Now I’m confused. I thought the movie’s chief premise argued that Darwinistic big science leads to atheism which in turn leads to the holocaust and mass killing. Yet this segment of the song surely argues the exact opposite.
Wallace Turner:
Yes, well, no one said they were any good at making pointed cultural critiques. I mean, they’re incompetent at filmmaking, marketing, PR, research, logic and all sorts of other stuff, so they probably just suck at cultural criticism too. Or they’re full of shit.
Ben Stein is not the producer of the show, so he would be in no obligation to pay anything…It’s a producer issue…
“It is not true that I do not support alternative theories of evolution. I do.”
Really? What other alternative would PZ Meyers accept? As far as the 15 second use of the song…
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.”
What is described there is a commentary setting…All other variables like who Expelled interviewed, and the other description about the creationist movie whether you agree with it or not, doesn’t have relevancy for the song “Imagine.” Evidence, is the factor in determining guilt or not…
Michael:
It’s also the factor in determining science, so any alternative to evolution would need some. Which is what PZ wrote:
Is it really that hard to read something carefully before you try to poke holes in it?
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.”
Isn’t Stein’s introduction here just patently false? Does he have any justification for (1) assuming that PZ believes that his position (atheism) is original, or (2) PZ reached this position by listening to the lyrics of “imagine”???
“We included the ‘Imagine’ clip not only to illuminate Ben Stein’s commentary but to criticize the ideas expressed in the song,” says Logan Craft
I don’t see that playing the song after the interview of an atheist amounts to a criticism of the song. It seems to me that it is just a device to polarize the Darwinian/ID issue in alignment with atheism/theism.
Michael:
Right, which is why no such thing appeared in PZ’s text. Now, read it again, and keep doing that until you get it right. Then we’ll talk.
Since they make no mention of the song itself, nor does PZ, and only use it as audio background in a discussion of science and the place of religion, I don’t really see how they can argue it as a critique of the song. If anything, it sounds like they’re trying to use the song as a critique of PZ, making it a piece of supporting evidence for their argument, not the point of contention. I grant I haven’t seen the movie, but unless they’re running it along with footage of atheists burning bibles or something, I don’t see the song as being critiqued.
Fair Use is the term used in US copyright law. Elsewhere, for example, in the commonwealth nations, it is known as Fair Dealing. While the concepts are similar, the laws are not identical and there is a good chance that if Ono were to go after distributors of Expelled in one of those countries, the results could be the opposite of those in the US.
It will be interesting. Especially to the expensive lawyers.
I really don’t think this should hold up as a “critique” of the work. If it does, you could use any song in any film without licensing it by simply claiming you used it in an ironic context.
If I were to produce a film whose premise was ‘love is a bad thing’, would it be ‘Fair Use’ to include a soundtrack of 15 second clips of every love song under the sun?
Well, silly me. I argued earlier that copying songs would cost them, forgetting that they could use the content as a sort of commentary. Which critiques should be able to do. (The problem that the “critique” in this case is blatant propaganda isn’t relevant, I presume.)
So, as IANAL and fair use is an exclusive US legality, I’m interested in any insights into the technicalities here. Apparently the fact that its use was of commercial nature will be of importance among the 4 factors considered, as well as if the intended critique was “transformative”:
Seems to me the Expelled producers have a problem – when they claim that they are criticizing the ideas of the song it is isn’t a critique of the song “in particular, but of society at large” as they picture scientists wants to see it.
But what exactly is “transformative use”? And how does it stand up to the fact that there isn’t any material in the critique? (It is in fact is listed as a logic fallacy in Wikipedia, as argumentum ad Nazium.)
Also I don’t understand the defense as it is described here. IIRC Yoko Ono claims that the Expelled movie is hurting the songs value (factor #4). Shouldn’t they answer that? It would be nice to see the respective filed motions, however it seems the relevant (?) PACER service center is a pay service.
Oops! “the song’s value” – seeing that Russell is commenting here. ;-)
Well, looks like Michael high-tailed it back to his creationist blog. But, just in case, one last reading lesson:
Alright Michael, you pay attention now.
So, you said:
Now, that part in italics? That’s from Premise, not PZ. That’s their defense of their use of Imagine. Yet you appear to attribute it to PZ and then criticize him for it. So, you either really suck at reading, or like your fellows in creationism, including ID, dishonest quote-mining is just another tactic for you to employ in Jesus’ name. So, if you have a complaint about the mentioning of all those interviews and the other “variables”, take it up with Premise. They wrote it. They released it. What PZ did was quote it, honestly, then criticize it. The point being, that Premise can’t seem to be anything but dishonest, and not that any of PZ’s criticism constitutes a valid legal argument. So, if you ever do manage to learn to read properly, you might realize that you’ve just seen a textbook example of legitimate fair use.
If, on the other hand, you really do know how to read (and I suspect you do, but prefer to grant you the benefit of the doubt because you may just be stupid) you will also hopefully learn not to quote-mine when the source text is right there on the same damn webpage.
And that concludes our lesson. Now run along and do try to be a good boy.
I work in the TV industry in the UK and i can tell you that AFAIK this would not fall under any fair-use clause that i’ve ever heard of. When making documentaries here everyone knows you NEVER use commercial music without clearance, especially not anything Beatles/Lennon related. We would normally go to the publisher of the song for clearance for use and then pay the owner of the recording depending on how many instances of the music in the film and how many seconds. The price depends on how many transmissions in what territories etc and for a movie i would have thought the rates would be pretty high. Publishers of the music and owners of the recording can, and do refuse to let their music be used and i don’t think there’s a great deal you can do about it if they do. Anyone who uses music in a commercial film without permission is either a) asking for it and/or b) a fucking amateur.
To be clearer, much of what is in the press release that PZ quotes from is indeed nonsense. But press releases by clients are neither here nor there, as long they don’t make damaging admissions.
The legal point that needs to be tested, which the press release does allude to in an imprecise way, is in what circumstances fair use applies to the hostile use of a song when part of it is played over images designed to comment ironically on its message. In my opinion, such a juxtaposition should be allowed in some circumstances, and this looks to me like such a case.
We’ve thrashed this issue to death on one or more other threads, so I assumed that it would be clear what I was talking about. However, I then realised that it wouldn’t be clear to anyone reading this thread who hasn’t been following the debate day by day. In any event, there does seem to be a reasonable argument that fair use applies here, and it’s no wonder if the people in the Fair Use Project at Stanford are keen to test the point.
IANAL, but the crucial point is, surely, that the excerpt from the song was used to label PZ as unoriginal, not to critique the song. There is certainly no explicit critique of the song, so the “fair use for critical analysis” doctrine does not seem to apply. It seems to me that they must argue that there is some kind of implicit critique. I wonder if there’s any precedent? I would think that this is the reason why Stanford Law are interested in it: to establish (one way or the other) a legal precedent for extending (or not) fair use for critical purposes to include implicit criticism of a work by allusion or association. It seems rather broad and vague and to open the floodgates to specious defences for copyright violation. I’d be surprised if a judge went for it. But hey, what do I know, IANAL.
I still find it telling that the other song used, “All These Things That I’ve Done” by The Killers, had the copyright usage cleared in the normal way. I suspect the difference is simply that it’s a far less recognizable song and group, and being sued by The Killers would not have garnered any additional publicity.
I believe that Stein and his group wanted to provoke a big public fight with Yoko Ono and the Lennon estate, and got exactly what they wanted. Whether that turns out to be a wise tactic remains to be seen; I suspect that they’ll find that the public’s sympathy will be more on the musicians’ side, except of course for the choir they’re preaching to.
Couple of things my mind stumbled upon in a brief respite …
“Nothing to kill or die for, And no religion too.”
… I wondered, why would a true ID proponent have a problem with the lyrics anyway? I mean, IDiocy isn’t a religion right? Nothing whatsoever in any way to do with a ‘god’ or anything. So why would the expelled gang have a problem with it anyway?
BTW according to the official Expelled site, “Ben blows the horn on Suppression”. Is that some new technique? Or do they mean “on Compression” (stroke)?
Tasker
“maybe an artist with a more personal appreciation of the ownership of an artistic creation would differ”
As a working composer, I most certainly do. For one thing, fifteen seconds is far, far beyond any reasonable definition of fair use. I’d sue the pants off anyone who used 15 seconds of my music in a movie and didn’t ask permission or pay me.
For another, Europe recognizes an author’s right to control the uses to which his/her art is put. My experience in the US is that this is also honored, if not strictly in law, then almost universally nevertheless. I have been asked numerous times to license my oratorio Voices of Light for movie trailers, documentaries, perfume commercials and the like. I have turned all down despite offers in the mid five figures for less than 30″ of music and those refusals have been honored.
The one exception was K-19, when two exceptional artists, Walter Murch and Kathryn Bigelow, asked to meet with me to discuss using my music in their film. Because no one has the right to deny genuine artists access to material, I immediately – and happily -agreed. And I was compensated, of course.
It is outrageous that Premise would try to steal Lennon’s music and and try to profit from Lennon’s hard work and talent without asking permission from his estate or paying a fee. To lay people, fifteen seconds sounds trivial. To those of us who work hard to earn a living in music – and Lennon worked harder and better than most – I can assure you that fifteen seconds is a lifetime.
Wow. Creationism or copyright. Now I have to decide which one I hate more.
My biggest beef with musical copyright is in television. In the 70’s and 80’s and early 90’s, before shows where released on VHS and DVD, songs were only licensed for broadcast. So when, say, the DVDs of Northern Exposure or WKRP in Cincinnati, a crew of lawyers had to track down the rights owners of all the incidental music in the show — and there is a lot — and negotiate a new rate. I don’t know if it was too much work, or if it was too expensive, or what, but most of the original music was replaced with insipid muzak in the DVD releases.
It doesn’t sound like a big deal, but both WKRP and Exposure had radio stations in the show, and a particular song was often key to the plot, so removing the song is basically changing the episode away from its original intent.
This is so important to people, they’d rather download crappy quality VHS recordings of the original show.
And never mind shows like the “Muppets” which feature exclusively musical performances. I imagine most of the work involved in releasing a season goes into tracking down and negotiating the musical rights.
For Expelled, I don’t think a music owner should have a right to decide where the music is used, but they should have a right to a standard compensation.
Judging from how dishonest they’ve been with virtually every step of this suckumentary you’d hope that could be used as some sort of pattern of operation that would weigh in against the copyright issues.
My understanding is that the Killers were duped in the same manner that they lied to PZ and Dawkins. The Killers didn’t know what the actual theme of the movie was, and have since asked for the song to be removed but it was “too late”
Here is a blog quoting some interaction with the bands people. Take it for what you will.
So, went and actually read Michael’s stuff.
Quite an achievement. It’s even less accurate than your average creationist anti-evolution screed. I mean, he doesn’t really try to even quote-mine properly. It’s basically just near-entirely citation-free stuff he apparently made up and/or copied and pasted. For example, there’s a “law of probability”. Just the one, and it was invented in the 20th century, going by who Michael attributes its invention to. Actually, what Michael’s trying to talk about, and failing to, is Borel’s (non-existent) Law.
Getting back to the egregious lack of proper quote-mining, occasionally, there is a quote in the “original” writing, but mostly they just get dropped in as a sort of section divider. Like, for example, this one from noted biologist Niels Bohr:
Oh, wait. That’s right. He was a physicist. Something else: he wasn’t saying precisely what Michael seems to think he was. Shocker. He was also, most importantly, wrong. But, hey, it was 1933 and he was onto something with the complementarity angle, so I’ll cut Niels some slack. The rest of the anti-evolution stuff is just reprinted crap from the ICR and, God help me, George McCready Price. Now that’s some seriously old time fucking religion there.
Anyway, I’m gonna cut Michael some slack too, because it appears he really is stupid. Dishonest too, but I think the stupid dominates. He’s also very bad at Intelligent Web Design and thinks Harry Potter is evil.
Wow, good work, #31. Everyone else, read that comment. (And if you don’t get it, read #16).
I personally don’t believe Expelled is a criticism of John Lennon’s Imagine. True, Expelled’s producers claims to use the song for “ironic” effect, but as social commentary in the context of the film.
As a sidenote, I would argue that Expelled _doesn’t_ achieve irony with its use of Imagine: as is my understanding, the song is played during a slideshow of photographs depicting Nazis and the horrors of WWII. Nazis weren’t atheists, Hitler claimed his evil genocide was the work of the Lord, and Nazi soldiers wore a belt buckle inscribed with the words “God With Us”. Therefore, the slideshow–taken independently–can only be interpreted as emphasis of the song’s message. “Nothing to kill or die for/and no religion, too…”
Of course, this is mostly irrelevant to the legal issue, but does help to emphasize that Imagine is being used to make more general social commentary, not commentary against the song itself. Criticizing John Lennon’s personal opinions expressed in Imagine would be wildly out of context with the rest of the movie. John Lennon wasn’t a scientist, the song has nothing to say about evolution, the song is presented in a manner that strengthens its lyrics, etc.
Obviously, the Expelled team intended to use Imagine for social commentary, not commentary against the song itself. Not only that, but they use about 9% of the song without giving an explicit reason inside the film–the equivalent would be like me taking almost 20 minutes of Expelled and putting it in my own movie “for ironic effect”! If a judge rules in favor of the Expelled team, he will strengthen fair use far beyond its intended protections. So long, spirit of the law!
I should have mentioned that I am not a lawyer, and this issue will be decided on its legalities, of which I am a poor judge.
All I can say is that my sympathies are torn. I very much like the principle of fair use, and I think it is good that Stanford Law is stepping up to defend that principle.
On the other hand, artists should be compensated for their work, especially when they produce something as popular and recognizable as Imagine. In this case, too, the defendants are lying about their motives, which strips them of a lot of my sympathy.
I’ll just be sitting back and watching the show. Whatever the judge decides will have to be OK for me, although I confess to a personal hope that he will sock it to the lying bastards.
@39 tristero
Not sure if others are familiar with “Voices of Light” (they should be) but I’ve loved your work ever since I became familiar with it — Hat’s Off, Sir. And may I say that I will defer to anything you have to say on this particular topic.
(Now, if Arvo Part is lurking here, I wish he’d show himself as well — but somehow I doubt that :)
“Nothing to kill or die for, And no religion too.”
“We included the ‘Imagine’ clip not only to illuminate Ben Stein’s commentary but to criticize the ideas expressed in the song,” says Logan Craft, chairman and executive producer of Premise Media.
What part of “nothing to kill or die for” did they criticize? Or even address? Obviously, the morons in their target audience are supposed to equate “no religion” with communism. Which is the same thing as Naziism of course.
Interesting that FUP includes extending the boundaries of “fair use” in its mission statement. From my understanding of Fair Use, it seems to allow commenting on the work in question. To extend this to mean commenting on any concept or opinion contained within the work would surely render copyright laws completely meaningless.
The central message of “Imagine” is surely an observation that nationality, wealth and religion are all factors in dividing humanity and that we would be better off without these divisions. Are the producers of Expelled under the impression that Lennon’s message was really “let’s get rid of religion so we can return to leaders like Stalin and Hitler”? If this is so, I think that Lennon did a pretty poor job of it.
If they are arguing that the film is commenting on “Imagine”, then surely the commentary should have some validity. Otherwise, we could include any song in any film and claim some entirely bogus argument that the film was somehow ‘commenting’ on the song. Lennon’s song makes no mention of Darwinism or the existence of god or gods. “Imagine” proposes a Utopian world, without war or conflict, and suggests that religion is one of the factors standing in the way of that ideal. Does Expelled concretely argue that religion is not and has never been a factor in human war or conflict? What, then, is the basis of their criticism?
Credentials note: I am an intellectual property lawyer – I don’t play one on TV.
Caveat: I haven’t seen the movie or the use in question.
With that, the clip as described doesn’t seem to be a cut and dried situation. As others have pointed out, the determination of fair use is governed by four factors that are outlined in the Copyright Act:
(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.
17 USC s. 107. The fact that the clip is being used in a commercial movie does weigh somewhat against the fair use claim, but the courts have been mindful that many creative works are meant to be commercially exploited. A rule that if use of someone else’s copyrighted material in a work that is intended for commercial exploitation is per se unfair would create an exception that swallows the rule. And, indeed, one can find cases where fair use has been recognized in the context of a work that is going to be sold commercially. (The case of the Margaret Mitchell estate vs. the parody work “The Wind Done Gone” comes to mind.)
Now, based on the fact that Stein made a passing reference to John Lennon coming up with the idea of no heaven, etc., and then using the music over the clips of atrocities, there may be a fair use claim. A court may regard this as a fig leaf (and honestly, it does have the smell of a lawyer’s advice about it), but it is not the kind of claim that is amenable to a summary disposition. So, much as I despise the agenda of Premise Media and what they’re trying to do with this film, I can’t say that they’re definitely on the wrong side of this question. One of the damnable things about being committed to First Amendment values is that you’re forced sometimes to defend the rights of people you despise. Those who have no real commitment to the First Amendment have no problem with saying that free speech and free exercise rights should only be afforded to those that agree with them.
“The infamous proposed Christianist license plate for the state of Florida, the one that said “I believe”, is dead. The supportive faith rays emanating from the prayerful public were apparently not strong enough to overcome the ass-suing beams radiating from the likes of the ACLU.”
Maybe Yoko should borrow the “ass-suing beam” generator from the Florida ACLU.
The perfect theme song for Expelled is Evolution Rock.
Absolutely fantastic!
The real trouble here is what copyright activists have been saying for a long time– fair use is interpreted in a huge number of different ways, and is open to legal misinterpretation. The copyright system is severely messed up in general, so it’s only more and more likely for these sorts of things to crop up.
A couple of comments:
1. I think the movie does make a comment on the ideas expressed in “Imagine”, and obviously uses PZ’s remarks as a springboard for doing so. The point they’re trying to make – with their usual flair for dishonest rhetoric, of course – is that the atheist utopian vision of “no religion” is, at best, childlike in its naiveté – a childish game – but one which leads to the not-so-innocent ends of communism, Stalinism, and the horrors that necessarily follow from the creation of a godless society. Bullshit or not, they’re addressing the idea expressed in the song (whether those ideas line up with PZ’s remarks is irrelevant to the fair use issue) and if fair use covers the use of 14.999 seconds of the song for that purpose, it would seem that Premise is covered. For better or for worse.
2. The use of the “Iron Man” theme in the I.M. trailer is another thing altogether. I can’t formulate an argument demonstrating that the film is attempting to critique ideas expressed in the song, so I can only conclude that the use of the theme is for the sole purpose of promoting the film. I’m gonna take a wild guess here and say that that is not covered by fair use. ;-)
To me, it just sounds like another bullshitty excuse for stealing. They just chose it as background music and are trying to justify not paying for it as they should have. They weren’t in any way discussing the song itself or critiquing it, so I’d be amazed if they managed to argue fair use. On the other hand, legal judgements and what’s right and sensible aren’t always highly correlated.
Thanks, Sanjiv. I was once, for a time, basically an employment/labour relations lawyer – definitely not an intellectual property lawyer, even though intellectual property issues would sometimes come up around the edges of employment contracts, etc. These days I am, at best, a philosopher of law, out of touch with all the detail and the exigencies of practice, and I can only express views based on fundamental principle as to how the law supposedly fits together. It was nice to read a view from someone who, unlike me, seriously knows what he’s talking about.
I’m a librarian and not a lawyer, but I know a thing or two about copyright, and Premise Media should have a fairly strong defense against this claim under Fair use, and I hope they prevail. The fact that otherwise I personally think they’re lying scumbags is irrelevant. If the courts rule in favor of Yoko, it sets a very bad precedent indeed.
Bear in mind that FFRF uses a larger sampling of “Imagine” as the introductory song to its podcast; I don’t know if FFRF pays royalties to Yoko & Co. for its use or not. It’s kind of an unofficial atheist anthem, after all.
My point is, Sanjiv is very correct in that defending the 1st Amendment sometimes means defending people who may despise you, and you them, but the law is meant for all, and a badly formulated, punitive ruling could always come back to bite you–and causes you support–in the @ss.
Pretty sure the song is in the movie as well and my guess is that it was licensed. I haven’t seen the movie (yet) but I heard it was in there from someone who went to a pre-screening.
I’m about the only regular commenter at rawstory who is a skeptic (lots of atheists, but lots of CTers, especially 911 and altmed), and have been having great fun playing with Larry Fafarman over this topic. I had heard about him, but had never before stood at the temple of stupid and talked to the high priest before. I’m starting to get bored with him, and may go find another mouse soon.
His claim that “imagine no possessions” is an abandonment of copyright is a don’t miss, as is the appeal to the kindness of Ms. Ono, or that she already has a memorial park in NYC, and that should be enough for anybody.
———
IANAL BAMOOTL (But Am More Of One Than Larry), as to fair use, I’d say that enough of the fair use guidelines are violated here for it to fail easily. If you google “fair use worksheet,” the current first and second links will take you to worksheets that let you compare fair use vs not fair use factors.
A couple of interesting points are that the length of quote is in regards to the length of the work. 15 seconds being fair is something of an urban legend. Most of us would remember Vanilla Ice’s use of a looped bassline of Queen/David Bowie’s Under Pressure in Ice Ice Baby. Those few extremely recognizable and substantial seconds of Queen’s work led to Ice settling for an undisclosed amount.
For a 3:01 song, 15 seconds is 8%, and since Premise has previously stated that the amount used is 25 seconds, this tops 13.8%. That is a clearly significant portion, and the lyric quoted is one of the most important and evocative lyrics in the song, making it substantial, and the use unfair.
Bad faith behavior is included, and it should be easy to demonstrate this as a theme in the production of the film.
When Yoko wins this case, I hope she’ll give the proceeds to benefit science education (or arts education).
Here’s the way I read the situation, based on the description of the song’s usage in PZ’s post and the comments.
First, Expelled shows PZ giving his opinion that religion’s role in public life should be reduced.
Then, Stein makes a claim that PZ stole this idea from the song “Imagine” — as if no one had ever expressed such a view prior to the 1970’s.
Finally, the film plays the excerpt from “Imagine” while juxtaposing its anti-religious message with scenes from Nazi Germany (and perhaps other totalitarian states).
Now, there are several issues here (such as the implication that PZ somehow plagiarized Lennon, and that Nazi Germany was atheist, both of which are dubious). But it seems to me that the one issue that has Fair Use implications is this: was the film critiquing “Imagine”, or PZ Myers?
I think one can make a case either way. By showing images of “evil regimes” while playing an anti-religion message, the producers are essentially mocking the idea that the world would be a better place without religion (or with less religion). That idea is expressed by both PZ and the song. Therefore the imagery is a critique of the song.
On the other hand, when taken as a whole, Expelled is NOT about music criticism, or criticism of Lennon or his ideas. It’s a criticism of the scientific establishment in regards to its (asserted) atheism and materialism.
In my opinion it will be tough to convince a judge that the intent of the “Imagine” clip is commentary on the song itself, or even on the songwriter, when the whole thrust of the film is in a totally different direction.
They were trying to trivialize PZ’s points as well, by pretending that they came from a pop song.
PZ wasn’t saying anything original, from what I gather, but what he said didn’t come from a song which isn’t trying to make any sort of argument, only portraying a kind of treacly (sorry John, it is) utopian hope. What PZ’s sources are I don’t know, but I’m sure they’re a bit deeper than a few dozen words of poetry.
Even that false attribution might count for something, but I hope not for much. The justice system ought to be able to look behind the falsity of the movie, and to realize that they picked Lennon’s song to lie about because of its recognizability and aesthetic properties. There is no meaningful criticism being made at all, merely false attribution and attempted smear of any sort of secularism.
Lennon’s song is by no means essential to any of that, but was needed to spice up their own dull creation. If a judge were to decide that 15 seconds isn’t enough to worry about (even though many think even shorter snippets don’t fall under fair use), that would be okay. What is not true is that Lennon was any kind of origin of anything they were criticizing in the movie, instead he was chosen precisely because they preferred to use the artistry in his song, which is exactly what is covered by copyright.
Glen Davidson
http://tinyurl.com/2kxyc7
One word: montage.
If they were actually critiquing it, then they should have had Stein sitting in front of a stereo listening to it, or a static picture of Lennon, with on-screen text showing the lyrics. That is a critique.
Putting the song in as bed music under images, to emotionally enforce an opinion, is a montage, and it’s a bonehead maneuver by any real producer to not secure rights for such a thing.
DaveX:
While I agree that fair use is interpreted in different ways, the problem is inherent in the nature of the defense. The diversity of works and the diversity of uses makes it impossible to statutorily prescribe one size for all.
As someone who works in the copyright permissions field (textbooks), I can say that while it is up to the judge, these people are very likely to have to pony up a LOT of money for this infringement.
It does not fit “Fair Use” which is a fairly loose term meant to cover things like some editorial use and satire, and no matter how short the segment is, they need to clear usage in a commercial product with the copyright holder.
On the bright side, despite tanking at the Box Office, perhaps someone can use their bragging about how many screens it ran on to show just how much it was used – essentially, you have to pay for every person seeing it, so attendance numbers and screens showing it all come into play here.
So ID is now a theory of evolution?
Bizarre.
No.
Hey, IANAL, but I’m just wondering: Isn’t there some process called “discovery” that might go on in this suit? And couldn’t some of Premise Media’s records, like emails and such, become public record? And wouldn’t that be potentially awesome?
Donut, Depending on the judge, it is possible for the fine (as much as $150,000 per offense) to be determined by number of tickets, number of showing, number of screens or number of theaters.
———–
Damon B, I have to say, if Stein had read the words of the song in his dull drone, that would have been both transformative and satirical, if unintentionally so. Absolutely fair use. It would have surpassed William Shatner’s performances, by far.
I just feel sorry for the judge who, sadly, will probably have to sit through the entire film.
There are four stock B&W film clips used under the audio clip of “Imagine”. They appear to be:
Although it’s not impossible that clip 3 is in fact a scene of Nazi Germany, I doubt it very much, and it wouldn’t make sense anyway because Nazi Germany was not an atheistic state – so on that one point, the filmmakers have done their homework. Nothing about PZ’s comments or Lennon’s song is being explicitly connected with Nazi Germany, but rather with a) naivete childish play and whimsy, b) Communist China, and c) Stalin, and all that b) and c) imply.
It’s clear that the montage is a visual commentary on the ideas expressed by PZ and by the lyric of the song. FWIW. IANAL.
The Nazi associations with Darwin and the ToE come later.
That they would come forth and defend such propaganda does seem to put a blemish on Stanford’s most beloved constitution, doesn’t it?
I thought fair use applied to non-commercial/not-for-profit use only?
It seems odd that the owner of a tune cannot dictate its commercial uses if they so see fit.
A business can refuse to do work for anyone they want- not too long ago there was a story about a (christian) printer refusing to print atheist themed materials.
Seems like the same should apply here to the music. But then again, I don’t know a damn thing about all these fancy laws which work the way the person with the most money desires.
The dispute got hashed out fairly thoroughly over on this thread. The point on which most of us readily agreed is that the question of what constitutes fair use can only be decided in a court of law. The issue is anything but cut and dried–if the defendant’s attorneys told the ass prods that what they were doing unquestionably constituted fair use, they had no legal basis for making such a claim (IANAL, but years ago I lived with one whose specialty was I.P. law, and have been advised by more than one attorney that only a fool takes a similar risk without a massive legal budget). If the ass prods were told that such a move was risky and would invite legal challenge, and they decided to take the risk anyway, using somebody else’s creative effort with neither permission nor licensing, I cannot imagine that they did so in order to nobly test the principle of fair use.
As Bruce Sterling said long ago, information wants to be free, but it also wants to be expensive. I want to get great music, media, software and high speed pizza delivery for as little money as possible, but I also want to be appropriately remunerated if I’m in the business of making and selling it. If I’m in the business of making media, I’m not going to be in business long if I get a reputation for lying to people whose intellectual property I want to use and especially if I want to just take it without even offering to negotiate a fee for it in good faith. By their willful abandonment of even Hollywood’s standards of ethical behavior, the people behind Expelled have committed professional suicide. This legal stink is all that’s keeping their turd of a film afloat in the news, despite the fact that it’s already tanked financially. They’ve spent way more money advertising it than they’ll ever make from it–they’d better hope that Stanford’s attorneys are working pro bono.
Fair use is a long-standing and vital right. Expelled is just one movie. Don’t give up the former for a one time shot at the latter.
Increasingly it is becoming too expensive, and sometimes impossible, to make documentaries, especially in the EU, given the enormous cost of copyright clearances for even the most trivial uses of footage, photos or audio clips. IP laws have gotten to the point that reality shows have to blur out the logos on peoples shirts and hats because they are trademarks. The ability for shows to shoot on a public street and use the footage is increasingly in danger from trademark owners suing because their trademark appears in the footage. This has gotten so bad that movie producers sometimes digitally remove the Transamerica Tower from footage of San Francisco because it is trademarked. IP maximalism is going overboard.
It is true that producers have been reluctant to take advantage of their Fair Use rights, but not because they don’t have those rights but because of the vagueness of those rights. Nothing is guaranteed to be fair use and Errors and Omissions insurers (insurance producers have to have to work with major tv outlets) w scumbags on’t insure a work that doesn’t have 100% clearance. But I think the lying at Premise deserve a fair shot at Fair Use. Fair use is good for all of us and we should all support the principle rather than our urge to see Premise smacked down in a way that will ultimately hurt us and our ability to comment on the works of anti-science works like Expelled.
Learn the lesson of history, please:
The First Amendment isn’t part of your club. It’s part of our Country and applies to all of its people, no matter how revolting we find them.
I think Damon made a really good point. To comment on IDEAS, it’s unnecessary to include the media through which the ideas are delivered.
They didn’t critique the song qua song. If the critique were of, say, Lennon’s singing voice, the fairness is apparent. But it’s easy enough for me to say “Intelligent design is shitty bullshit” without showing a clip from Expelled or even quoting it directly. Concepts can be referenced without being embedded.
If Premise’s purpose were truly “commenting or criticism,” quoting the lyrics would suffice. They obviously included the music and the vocal performance because they wanted the emotional impact of the song juxtaposed with the stock footage (and presumable they paid for that?). Real professional big-boy movies pay licensing fees for emotional impact, because that’s essential to what a movie is. Failing to compensate an artist whose work contributes to the artistry of your medium is in no way fair (however artless this particular movie is).
I find the comments by composers to be particularly illuminating, BTW. As part of the sampling generation, I hadn’t fully realized just how much effort goes into the creation of an original piece of music that doesn’t suck.
Ah, well, if it comes down to brass tacks, I’ll put my money on Yoko’s lawyers over anybody the Expelled crowd can dredge up.
P.Z. is wrong on at least one point: the movie is definitely commenting on the song.
It is not a verbal commentary presented by Stein or anyone else, but rather a visual, and symbolic commentary. The images presented with the song (children playing, a march, and Stalin waving) all amount to a commentary on the ideas presented in the song”: the message seems to be that the unrealistic idealism expressed in the song is childish and leads to dictatorship and oppression.
It’s kind of funny that being atheist is “idealism”, it’s like admitting that it would be so much better with no God, but, alas, we’re stuck with the ol’ tyrant.
“Ah, well, if it comes down to brass tacks, I’ll put my money on Yoko’s lawyers over anybody the Expelled crowd can dredge up.”
Then you are betting out of ignorance. The Fair Use Project of Stanford Law School is not somebody Expelled dredged up but an impact litigation project to protect fair use rights, fair use rights that have been used in this very thread, like the legal right to quote the lyrics.
People are letting their hate of Expelled cloud their judgement and cause them to speak out *against* their own self-interest, which, for most of us, is strong fair use rights. If you want to let Expelled do damage, then go right ahead and let your hate for it cause you to argue against your own free speech rights and against fair use–but that will be **your own fault** for being so myopic.
Scote, are you sure trademarks are blurred for liability reasons? I was under the impression that trademarks and logos were blurred so no one got free advertising. Also, do you have any cites for the Transamerica tower trademark? I didn’t know a building could itself be trademarked (as opposed to the image of the building), so I’d love to learn more about it.
Stanford will be fighting an uphill battle on this one. The use of a sound recordings can never be fair use, at least for sampling purposes, because it’s a physical appropriation (unlike the music that makes up a sound recording, which is more like an idea). I don’t see how using a sound recording in a film would be any less of a physical appropriation.
I am a staunch defender of the First Amendment and firmly believe that copyright holders have far too much control over their works for far too long. Unfortunately, this doesn’t change the current state of the law and Expelled is on the wrong side of it.
**Without Fair Use nobody would have been able to quote the lyrics in this thread, not even one single line.**
Without Fair Use, Etha Williams couldn’t have created a play on words using the lyrics in post #2. Without Fair use, Yoko could sue Etha right this second.
We need Fair Use.
People in this forum take Fair Use for granted and don’t realize what they are risking in supporting Yoko over Fair Use.
“Scote, are you sure trademarks are blurred for liability reasons? I was under the impression that trademarks and logos were blurred so no one got free advertising. ”
That was what I had always assumed, too, but as it turns out trademarks are blurred to avoid legal claims and to qualify for E&O insurance.
The Transamerica tower is a long standing trademark and is well known in trademark law, but you can even see the (r) next to their tower logo on their website.
“The use of a sound recordings can never be fair use, ”
That is simply false. Fair use applies to copyright. A the legal rights at issue are the copyrights, whether for the song, lyrics or the sound recording. I’m not sure where you get your “physical appropriation” theory but it isn’t part of copyright law.
Scote, I support fair use. But Expelled isn’t fair use. Etha is making a transformative parody comment which is also non profit and non commercial. She qualifies for fair use.
Scote, you omitted an important qualification in my comment: at least for sampling purposes. This statement is not false, and my “physical appropriation theory” is a part of copyright law. See Bridgeport Music v. Dimension Films, 410 F.3d 792, which states point blank “Get a license or do not sample.”
Also, “For the sound recording copyright holder, it is not the ‘song’ but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.”
Additionally, I’d like to make it clear that, ideologically speaking, I do not support Yoko Ono’s infringement claim but as I mentioned in my last post, the law is on her side.
It seems to me that if this kind of thing wins, you could completely upset any RIAA pressure and gain file-sharing immunity by simply adding to the end of all your mp3’s a snide little commentary – “this song sucks,” or something to that effect.
Is that now fair use?
It reminds me of what we used to do in Spanish classes that expected Spanish only conversation. The exception was, “como se dise ___ en espanol?” which means “how do you say ___ in spanish?” So we’d utter “como se dise” and then proceed to have an entire conversation, capped with “en espanol.”
Premise is taking advantage of a small loophole when the actual message did nothing to criticize the actual Lennon song. It’s effect was to take advantage of the tune’s recognizability and hijack its actual message.
“Scote, I support fair use. But Expelled isn’t fair use. Etha is making a transformative parody comment which is also non profit and non commercial. She qualifies for fair use.”
Not necessarily. Parody is only an exemption if the copyrighted work is the target of the parody. The parody exemption is vary narrow. Additionally, I’ve seen the **entire** lyrics of Imagine posted in a thread on this topic. Under strict copyright law, that violation could be subject to a fine up to the statutory limit of $150,000 for willful violation. Fortunately, copyright law is rarely enforced to that level of draconian and financially ruinous level, but it could be. Fair Use is a vital right that helps keep copyright abuse in check.
It is clear by all vehement objections that the use of imagine is indeed commentary–stupid, backward, wrongheaded commentary==but commentary non the less. Don’t support draconian copyright maximalism. Support reasonable fair use and free speech, even if you disagree with the speech.
“Scote, I support fair use. But Expelled isn’t fair use. Etha is making a transformative parody comment which is also non profit and non commercial. She qualifies for fair use.”
Not necessarily. Parody is only an exemption if the copyrighted work is the target of the parody. The parody exemption is vary narrow. Additionally, I’ve seen the **entire** lyrics of Imagine posted in a thread on this topic. Under strict copyright law, that violation could be subject to a fine up to the statutory limit of $150,000 for willful violation. Fortunately, copyright law is rarely enforced to that level of draconian and financially ruinous level, but it could be. Fair Use is a vital right that helps keep copyright abuse in check.
It is clear by all vehement objections that the use of imagine is indeed commentary–stupid, backward, wrongheaded commentary==but commentary non the less. Don’t support draconian copyright maximalism. Support reasonable fair use and free speech, even if you disagree with the speech.
…ahhh!!! Apologies for the double post…it said it didn’t go through the first time.
Let’s try a little hypothetical question: If Michael Moore incorporated 15-25 seconds of a Toby Keith song into his next movie without getting clearance, and the subject matter of the movies was not Toby Keith, music, or artisic expression of any sort, who would be trying to give him a pass, and why?
Bonus rhetorical question: Would Michael Moore (or, for that matter, any producer other than Premise) be stupid enough to try to use 15 seconds of a Toby Keith song without permission?
john-riley: The example of tagging on “this song sucks” is not really on all fours, since in that example, the whole of the song is being used.
Here’s roughly how I see the factors playing out, for whatever it’s worth:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
This factor would likely be the most contested. The fact that the montage comments on the message PZ expressed doesn’t take away from the fact that it comments on the message of the song. The movie is not about the song, and certainly there were other ways that the point could conceivably have been made. But it gets a little dicey when you have courts saying that because there was another way to convey the same message without using the work, the use was unfair.
The film is undoubtedly a commercial enterprise, which weighs against finding fair use, but not conclusively. However, as discussed above, creating a per se rule denying fair use in any commercial work would limit fair use to the point of near-uselessness.
If the producers got permission for use of other songs, that could be relevant, as they were clearly familiar with the process for securing clearances.
(2) the nature of the copyrighted work;
This work is one of the most famous songs of all time and considered a highly original work. It’s not a non-fictional work or compilation or something similar in which copyright is thinner. The song is iconic. This weighs against fair use.
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
Fifteen seconds is not a small amount, but it’s not enormous either. The portion excerpted would probably be considered more substantial than, say, the opening chords. This weighs against fair use.
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Expelled is no substitute for the song. Yoko may argue that this use diminishes the value of the song by associating it with an unsavory message contrary to the meaning of the song. However, every parody or commentary has that risk. On balance, I see this weighing in favor of fair use.
While it would be nice to have a bright line rule on fair use, it may be a legislative impossibility. Bright line rules work very well for simple, fungible cases. Copyright cases are, by their nature, neither simple nor fungible.
“Scote, you omitted an important qualification in my comment: at least for sampling purposes. This statement is not false, and my “physical appropriation theory” is a part of copyright law. See Bridgeport Music v. Dimension Films, 410 F.3d 792, which states point blank “Get a license or do not sample.””
Bridgeport was a sampling case rather than a fair use for criticism case. The “physical” part you are referring to refers to copying of the sound recording as opposed to the composition–that’s all the “physical” revers to, the copyright of the sound recording. Bridgeport has nothing to do with a Fair Use for criticism case. In Expelled, the producers are very specifically contrasting the lyrics of Imagine to the views of the Expelled producers–they aren’t appropriating it as music, which clearly gives them a Fair Use defense and contrasts it with the Bridgeport sampling case, which is not on point.
Thanks Sanjiv.
This whole issue really is fascinating. Probably one of the most interesting topics I’ve seen in a long time. We are immersed in an emotionally charged issue whose side is clear while while trying to stick to objective reason and our own interests. It churns the brains. :)
Awesome stuff. If Premise wins, the gloating is going to make us all cringe for weeks. Ugh.
Sanjiv @ #89,
Thank you for providing a concise, cogent legal analysis of the fair use argument. Also, it was helpful to point out in #47 that the mushiness of the fair use standards means a summary disposition is unlikely. I’d like to piggyback on your observations with two points. (I seem to be thinking in twos today.) First, the unlikelihood of summary judgment means the case will require the full discovery process and trial to resolve the claim (unless it’s settled first), which as you know will be very, very expensive. I don’t know who will be paying for Premise’s legal defense, but if I had to bet, I’d guess Yoko Ono is more likely than Premise to have the requisite money, stamina and good legal talent to see it through.
Second, if a client came to me and said “hey, I want to use 15 seconds of a John Lennon song in a movie that is indirectly critical of the song’s sentiments, and I don’t want to get clearance,” I’d reply “no, no, and no,” and then I’d write a nice CYA letter to demonstrate that I’d advised them against such a foolish course of action.
Thinking about this puts me right back on the fence on the question whether failure to get rights to the song was mere stupidity or a deliberate provocation.
“Awesome stuff. If Premise wins, the gloating is going to make us all cringe for weeks. Ugh.”
If Premise wins it will be easier for us to include clips of Expelled for criticism and it will be harder for them, as Fair Use defenders, to sue. Their win will ultimately be a win for us, and their loss will be a loss for us.
Correction: I meant to refer to Sanjiv @ 48, not 47. If I could count I’d have become a scientist, not a lawyer.
Scote, I have to respectfully disagree. Listing the lyrics of a song is a factual statement and does not reproduce the work in question. If it were only a poem, the reproduction would be complete, and would not be free use if there was no commentary or critique.
I think it is useful to note the vigorous and intelligent debate going on here. If the group here were mere unreflective acolytes of Big Science, would there be any defense of Expelled against copyright violation? This is a great example of the general approach we ideally take — look at the evidence, weigh the theories, to whatever conclusion the process leads you.
“Scote, I have to respectfully disagree. Listing the lyrics of a song is a factual statement and does not reproduce the work in question. If it were only a poem, the reproduction would be complete, and would not be free use if there was no commentary or critique.”
Sorry, that is wrong. A song can have three **separate** copyrights, which can be violated separately or together. The composition (music, notes, arrangement, etc), the **lyrics** and the sound recording.
The lyrics themselves **are** a copyrighted work. Copying the lyrics is copyright infringement–not a “factual statement.” Fortunately for you, Fair Use is an affirmative defense to copyright infringement.
The Lennon v. Premise lawsuit is proceeding apace. On April 30, the court ordered early discovery, requiring Premise to disclose its intellectual property licenses. Premise is temporarily prohibited from distributing any more prints of the film, and from manufacturing or distributing CDs or DVDs. A hearing on a preliminary injunction (which could limit or bar distribution and performance pending a full trial) will take place on May 16.
#83 – Bridgeport got rid of de minimis, not fair use. The Sixth Circuit issued a second opinion precisely to clarify that point: that their original decision did not speak to fair use.
… I *am* a fair use attorney, but from an impact litigation point of view, I don’t think this is the best case. The two main problems with this case are (a) that the commentary is not precisely on the song, as numerous commentators above have pointed out; and (b) Expelled apparently did license the other songs.
On the latter point: Since they licensed the other songs, why didn’t they license this one? There doesn’t seem to be a good reason — asking & being rejected doesn’t hurt your fair use case, so there was no reason not to ask for permission.
On the former point, yes, the film as a whole and in that segment critiques the ideas that are in that song. However, there is nothing about this particular song that was being critiqued: there are plenty of other, much less recognizable, songs that talk about materialistic worldviews, atheism, etc. They chose this one because it was instantly recognizable. In fact, the portion they took is arguably the “heart of the work” — a very big problem for a fair use defense, particularly in light of the fact that the song is not directly at issue.
That goes to another point that I’m sure Yoko Ono’s attorneys will be making: That “Imagine” is an iconic representation of John Lennon, raising trademark and possibly even right of publicity issues.
At any rate, an impact litigation group has to pick and choose its cases. You don’t just pick any case on the issue you want to push: you pick cases based on their winnability. From a fair use perspective, I’m actually concerned that the FUP will lose this one, and get a bad case on the record.
Scote, you’re not quite getting my drift.
Yes, Bridgeport only concerned sampling and sound recordings. Yes, the copyright in a sound recording is distinct from the copyright in a musical composition.
That’s exactly my point: the Expelled producers have infringed not only the copyright in the musical composition, but the copyright in the sound recording as well. Whether the use focuses on the lyrics — part of the composition — has no bearing on the fact that the sound recording was used as well. (Except maybe to weaken the case for use of the sound recording.) The fair-use analysis for a sound recording would be very different from the analysis for a musical composition, and the Expelled crew will have to contend with both. Because use of the sound recording is a physical taking, the bar for fair use is set much higher than for a musical composition.
Boy, what a blow…
…given that they currently have 397 prints already gathering dust compared to their opening day release.
Maybe Premise’s goal is to get the court to seize the prints as evidence, so that the producers don’t have to pay storage fees for them.
Thanks for the info, Laura.
—-
Scote, I was not aware of that, but considering that there are lots of websites of nothing but lyrics, and that pages with Monty Python songs or Saturday Night Live sketch videos had to be taken down and replaced with lyrics and transcripts does suggest that I might be on to something, even though I don’t know exactly what it is. Keep well.
“At any rate, an impact litigation group has to pick and choose its cases. You don’t just pick any case on the issue you want to push: you pick cases based on their winnability. From a fair use perspective, I’m actually concerned that the FUP will lose this one, and get a bad case on the record”
I suppose it can cut both ways. If the SUP didn’t take on the Expelled case and it looses it could still be an important case on the boundaries. But, I’d agree that the this is not the strongest case they could have taken on and they probably should have waited for a better case to come along–and definitely for client that lies less, which I think ultimately may be a stronger disadvantage than the actual reasonability of the fair use claim were it to stand on its own. Having a client who repeatedly makes demonstrable false statements in public is a really, really bad way to advance impact litigation.
Very insteresting points, Laura.
(Your blog is interesting, too. Hmmm. We look at each other across the glittering sea…)
Scote, I was not aware of that, but considering that there are lots of websites of nothing but lyrics, and that pages with Monty Python songs or Saturday Night Live sketch videos had to be taken down and replaced with lyrics and transcripts does suggest that I might be on to something, even though I don’t know exactly what it is. Keep well.
Nope. Lyric sites are infringing as well. The difference is in who enforces the rights. The record companies own the rights to the sound recordings and are vigorous in enforcement. They don’t necessarily own the separate rights to the lyrics, so enforcement actions are no coordinated. However, many, many lyrics sites have been shut down. But putting lyrics up requires less bandwidth so they can pop up faster than a fully populated audio or video site.
client that lies less, which I think ultimately may be a stronger disadvantage than the actual reasonability of the fair use claim were it to stand on its own.
Yes, the facts are not good here, and fair use is nothing if not fact-driven.
The more I think about this, the more I am dubious of its benefit (as an impact litigation case). If it were Yoko v. Premise, they would have settled pretty quickly, I bet, unless Premise has a *lot* of budget. So maybe Stanford is taking this on to get a better settlement, but I think that’s hard to do when Yoko has such a reasonable (some would say strong) case of infringement.
So if they’re in this to actually litigate it, then they must think the commentary part of the analysis is strong and that will be an opportunity for the Second Circuit to step up on this matter. But since the facts are bad on the licensing (no requests for Imagine, and lies for The Killers), I think this is a hard one for Premise to win. Even if you accept, arguendo, that the commentary is strong — and I think the commentary is weak here.
The good news is that if Premise *does* win, it will *really* open up fair use. The bad news is that if they lose they could get us an opinion that would really solidify the impact of Bridgeport on the music industry: no de minimis, and a hard to beat case for fair use.
Etha (#2), how about: Imagine all the people/knitting for today…
“the atheist goal is not the elimination of religion, but a reduction of its impact in secular functions”
What do you mean, “the atheist goal”? An atheist is just someone who doesn’t believe in any god. He or she doesn’t necessarily have any specific “goal”.
@#98
Hey, that’s my birthday! Think they’d be willing to give me a preliminary injunction as a gift? If I asked really nicely? (Maybe if I prayed?)
@#59 Donnie B —
What?! You mean John Lennon WASN’T the first person to ever think such a thing? Well, there goes my atheism, out the window. It was really only motivated by phony beatlemania in the first place….
Etha,
Phony beatlemania has bitten the dust! (At least since, oh, about 1979 . . .)
Nice discussion. Just two points (and remember I am not a copyright lawyer): I would have thought the iconic nature of the work strengthens rather than weakens Premise’s case; likewise, the fact that they did get permissions for material that they were using in a non-hostile way should strengthen their case if it is relevant one way or another. Think about it: the underlying idea behind fair use is to allow commentary that is in the public interest (and yes, it clearly is in the public interest for atheistic ideas to be critised, just as it is the public interest for religious doctrines to be criticised). Commenting on something that is iconic seems more important (and more plausible as a way of making a point) than commenting on something obscure.
Furthermore, it’s interesting that the one thing they seem not to have obtained permission for was the very thing that they can strongly argue they were using for the purpose of making hostile, ironic comment about its message. Surely that helps their case if anything.
I’m not actually sure that these issues will even be relevant in the trial. However, since people have brought them up, that’s my response. If they are relevant at all, they seem to favour Premise.
Once again, we need to set aside our hostility to the particular litigant and look at this from a perspective of legal principle. Copyright is a statutory exception to the normal assumption of freedom of expression (a common law assumption, even apart from the First Amendment). As such, it should be as narrow as possible, consistent with its purpose.
It is designed to provide a limited monopoly on certain expression in order to encourage the creation of socially-valuable products. It allows something that is not by its nature a scarce resource to be treated, nonetheless, as property – and thus be removed from the commons. Accordingly, it allows the creators of products such as books and songs to make money from their efforts.
However, copyright is not designed to forbid critique of the ideas expressed in those products, which is arguably a higher value within the overall structure of legal principle. If copyright law starts to chill critique, it needs to be narrowed appropriately by the courts. Nor should it be used to confine too closely the form in which such critiques are presented. As someone said above, it’s dangerous for a court to accept the argument that a point should not be made in a certain way because it could have been made in some other way.
Once again, if Premise actually wins this case it will bring the developed case law into better alignment with underlying legal principle, and that’s a good thing for everybody, including us. So cheers for the Stanford folks for arguing in the way that they, seemingly, are. In principle, they seem to be right, though it’s not for me to say how big a hurdle the current case law sets for them: I’m analysing this from a philosophy of law perspective rather than from a practising lawyer perspective (but Sanjiv’s analysis isn’t wildly different from mine).
Finally, as has been said above by me and others, if you really believe in First Amendment values, you believe that they should apply to your enemies as well as your friends.
Hopefully, Premise will get the same nimrod attorneys who represented the fundies at Dover.
As far as knitting goes, I think it should be more like religion… “DEATH TO THE CROCHET CROWD!”
I’ve been working in the recording industry for nearly twenty years now. As someone who has engineered entire records and has a clue about just how much human labor is locked up in those ones and zeros the “file-sharing” generation ganks so blithely, I want to say thank you, Clarence, for getting the point.
Quick abstract question if there are any IP lawyers still in residence; is hostile critical use more protected than sympathetic critical use?
Could a hypothetical movie where Imagine was derided as atheist propaganda be protected by fair use, where a movie advocating Imagine as a masterful exposition of atheist values would not? (Both movies use the same materials, only the tone of the message is different)
Of course you are not my lawyers, this is not legal advice etc. but I am curious if there is either a clear legal distinction, or a practical distinction due to existing precedents.
“a quick 15 second clip of a popular song ought to be acceptable use,”
Unfortunately it isn’t. The law in this area was very well established during the sampling era.
If you use *any* recognizable portion of a recording you pay fees. For example, sometime in the mid ’90’s a major hit used the first 4 beats on the high-hat (cymbal) from the start of Janis Joplin’s “Move Over”. That’s about 2 seconds worth, and they only used it once.
They paid sampling fees (which are smaller than for the full song, but generally negotiable).
There are many instances of bands thinking they can sample something and get away with it on the basis that “nobody will notice, it’s too obscure”. Somebody always notices.
For example, I noticed the “Move Over” lift while listening to the radio and parking my car even though I hadn’t heard “Move Over” in more than a decade.
I doubt Premise will get far at all with this.
Wow PZ, you were kinder than I’m going to be about this.
Copyright for a song is not just one thing. There’s the copyright of the actual recording used (EMI holds that) and then there’s the copyright to the song itself, which Yoko Ono now holds. In other words, if Ben Stein had sung it instead of them using the recording, it still would be a copyright violation.
And here’s the thing that I guess even the legal minds at Stanford Law School’s Fair Use Project (who are defending Premise Media) must not understand: Yoko Ono has copyright of both THE LYRICS and THE MUSIC. So even if Ben Stein had just hummed the melody, it still would have been a violation of copyright.
Now, to the Fair Use claim. I can see them making a claim for Fair Use of the lyrics, but howso for the music? They’re basing their defense on the fact that law allows the use of copyrighted material for purposes of “criticism and commentary”. But they neither commented on nor criticized THE MUSIC (you know, the melody, the chord progression, Lennon’s singing ability, the piano motif that runs throughout, the form and structure, etc.) and the music itself is neither criticizing nor commenting on the images used in the montage that is seen along with it. So as PZ said “”It’s just a pretty and extremely recognizable popular melody; they are using it as background music to a series of images that they want to use to generate a negative emotional response to my argument. They could have used any music and still made the same point.”
And that’s exactly why it’s not Fair Use. If you can make your point, fulfill your purpose, or make your work of art without the copyrighted material, then your rights to “free speech” aren’t being denied you.
Use of music along with images to direct emotions is done all the time in films, both documentary and fiction, and it is standard practice in the industry that filmmakers must obtain permission of the copyright holder before using their music. or get a composer to write new music for the project. I can’t see any judge setting a precedent that would overturn this. It would be devastating and dangerous to the music industry, and what judge is going to make a ruling that effectively says the rights of filmmakers are more important than the rights of composers?
Sampling is not a fair use for criticism claim. The Expelled producers are claiming fair use for criticism, which is different issue than the one you cite.
(Disclaimer – I am a (UK) lawyer, but not an IP lawyer).
Shorter Andy G – “On their story, Expelled criticised the copyrighted lyrics, but copied the copyrighted sound recording”.
To the IP lawyers – why is this not fatal to the defence of fair use? The commentary (such as it was) was not on the sound recording – so how can use of the recording be fair use?
To test this – what if the recording used had not been recorded by the author of the lyrics, but (with all the proper licences) by a third party – say, for the sake of example, The Killers? The copyright in the sound recording would be owned by The Killers. If The Killers were to sue for breach of copyright, where is the fair use defence? Nothing to which The Killers had copyright would have been the subject of commentary.
Why, thank you.
That seems like a reasonable analysis based on the context of the law. But again, IANAL.
Sanjiv @ #89:
Thanks for the clarifications.
Thought just occured to me.
On another blog I replied:
“Larry,
You quoted: 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.”
Then wrote: “This verbal commentary greatly strengthens the claim of fair use — the movie expressly critiqued the song.”
That’s really a stretch. The verbal commentary is clearly on, or criticizing, whatever views you just heard Dr, Myers give in that section of the interview. The mention of “John Lennon’s songbook” is a reference to, not a comment on nor a criticism of his songs, “Imagine” being one of them.”
I think they wrote that line into Stein’s script for the sole purpose of hoping some judge would buy Larry’s line of reasoning. And if so, that’s a very, very, scary thing.
If that kind of usage is ruled fair, then what’s to stop any filmmaker from coming up with references to songs just to deliberatly create a situation so they won’t have to pay for them? The Fair Use law was NOT placed in U.S. copyright law to allow one class of artists (filmmakers) to trample the rights of another class of artists (songwriters, and by extension all lyricists and composers). The judge is going to take that very much into consideration in assessing Point #4 of the test for fair use regarding damages. The issue won’t just be to what extent Yoko Ono will suffer if she doesn’t get her royalties from the movie, but to what extent ALL lyricits and composers will suffer if the filmmakers deny them royalties by not requesting permission and properly attaining the license for the use the material, which is the mechhanism through which royalties are collected and paid. It would be economically devestaing and would effectively work against the creation of new works of music, the very thing Fair Use says it was put there to defend.
So let’s see if I’ve got this straight then. It’s “Big Musicians” who have banded together to squash the movie Expelled and stamp on Freedom of Speech.
Yes, it us musicians behind the conspiricy. We’re all frightened of people seeing your movie and hearing the truth because … because … ???
It seems to me that there is strong support for the producers of Expelled in the 2d Circuit’s decision in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007), in which the court held that it was fair use for Jeff Koons’s to appropriate a significant portion of a copyrighted photograph in one of his paintings. The Second Circuit reasoned:
“Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media.Castle Rock Entm’t, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as ‘raw material,’ Castle Rock Entm’t, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see also Bill Graham Archives, 448 F.3d at 609 (use of concert posters ‘as historical artifacts’ in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when ‘the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting’ on the original). His stated objective is thus not to repackage Blanch’s ‘Silk Sandals,’ but to employ it ‘in the creation of new information, new aesthetics, new insights and understandings.'”
Aren’t the producers of Expelled using a portion of Lennon’s song as fodder for their commentary idealistic atheism? They aren’t using the song to attract people who want to hear Imagine. They’re using it as a highly evocative symbol of a world view they fear and abhor. That they might hurt the sales of Imagine isn’t necessarily relevant either. Any criticism hurts sales. That doesn’t mean a book reviewer is forbidden from quoting a book he’s panning.
The kind of damage to sales that does matter is where people buy Expelled as a substitute for Imagine. That’s not what’s going on here.
Incidentally, I think it quite possible “quotation” in the course of negative criticism is more likely to support fair use than quotation in the support of negative criticism. For one thing, it’s unlikely a copyright holder will give permission to the person criticizing him negatively. In that regard, I don’t think it matters that the producers of Expelled did not seek Ono’s permission. It seems plain to me doing so would’ve been futile, so why should the law have required it?
I feel about this one about the same as I felt about the ACLU’s successful representation of the Nazis who wanted to march through Skokie, Illinois, a community full of Holocaust survivors. I hate the message, but I always want to make sure I can express things a majority of people hate.
I don’t see the case of Blanch v. Koons as being a very convincing precedent for Fair Use in this case. The two cases seem completely different to me.
http://www.law.com/jsp/article.jsp?id=1162215323449
Koons did not use a photograph or a copy of the photograph – he made a painting of it, which he admits he ‘altered’. I take it this is the basis for the judge considering that this use had been sufficiently ‘transformed’ for Fair Use purposes.
But in Yoko Ono et al. v. Premise Media et al., the producers used an absolutely unaltered sound reproduction of the song, fifteen whopping seconds of it (that’s a lot in music). They did not transform the song in any way at all.
Replying to some of Peter’s other comments:
“Aren’t the producers of Expelled using a portion of Lennon’s song as fodder for their commentary idealistic atheism?”
Are they? “Fodder” is defined (among other ways) as “raw material, as for artistic creation”. But raw material implies that the material is in some way, in fact in a lot of ways, changed. A hunk of marble is not your sculpture. Two pages from a dictionary is not your novel. A tree is not your Chippendale chair.
The song itself was not changed. They left the “raw material” completely unchanged by using an unaltered sound recording.
“The kind of damage to sales that does matter is where people buy Expelled as a substitute for Imagine. That’s not what’s going on here.”
That’s what on the face of copyright law you might be led to think, but we all know that no one goes to see a film as a substitute for buying a record album (ah, my age is showing here). My reading of copyright cases suggests that the key is the ‘transformativeness’. If the use creates something actually ‘new’, Fair Use will more likely be protected. But the filmmaker’s made a documentary film. People have made documentary films before, that’s not ‘new’. The usage is neither ‘transformative’ (an unaltered sound recording was used) or ‘new’ (filmmakers juxtapose songs with images for all kinds of reasons all the time, and routinely license the song’s lyrics and music). That last being so, why can we not find more precedent cases of this kind that ruled in favor of the defending filmmaker?