Yoko Ono sues "Expelled" filmmakers over Imagine

Is this an issue of freedom of speech?

In all fairness, this is an issue of 25 seconds out of the full song.

Twenty-five seconds of a three minute song is almost one sixth.

In all fairness, this is an issue of 25 seconds out of the full song.

which might be fine as a personal assessment, but as a legal one, it's entirely irrelevant.

Most TV commercials are 30 seconds, and they sure pay for use of songs and music.

Does anyone else think this may affect the payments to church groups for seeing "Expelled?" Are the producers going to have any money for the payments after they lose this lawsuit?

I imagine their "fair use" defence would involve the juxtaposition of images which reflect their view of what life would be like if there was "no religion too".

However, I do have to wonder how this was at all supportive the issue of what the film was supposed making a case against? After all, wasn't it supposed to be about the alleged persecution of scientists and academics who had the temerity to espouse the notionally non-religious concept of Intelligent Design? In that context, what sense does the supposed contrast of the alleged "atheistic consequences" of "Darwinism" to the song "Imagine", either as parody or as criticism?

which might be fine as a personal assessment, but as a legal one, it’s entirely irrelevant.

I think the makers of expelled are beginning to have their "great awakening" They better rack up the profits, their legal fees and settlements are going to be staggering. No telling who else will file suit. Of course, I am sure it is just part of their publicity plan.

OT - the Institute for Creation Research had submitted an application to grant Master Degrees in Science Education in Texas. Out Higher education Coordinating Board unanimously rejected the ICR application.

The producers cited the fair use doctrine, which allows the use of copyrighted materials for the purposes of commentary and criticism. "We are disappointed therefore that Yoko Ono and others have decided to challenge our free speech right to comment on the song 'Imagine' in our documentary film," they said in a statement.

As I pointed out in a rather lengthy comment on the Gonzalez thread ( http://pandasthumb.org/archives/2008/04/expelled-pseudo.html#comment-152428 ) this is a very settled area of copyright law with established procedures for securing film rights.

Indeed, it's inconceivable that Rocky Mountain could have sold the film without an "E&O" insurance policy to the distributor guaranteeing that the the film was free and clear of such legal encumberences.

So called "E&O" insurance - Errors and Omissions - is kind of like the intellectual property equivalent of the title insurance you buy to transfer a house. A third party researches all the outstanding property claims, and guarantees that the property is in fact the sellers to lawfully sell.

It's a standard, contractually required "deliverable" on any significant movie, and a reputable distributor won't touch a project without it, much like nobody would buy a house without a valid title search.

Reputable distributors are neurotic about this, because one slip can be incredibly expensive for them. A disgruntled copyright holder can block a release or even have a film pulled from theaters, as almost happened on “Batman Returns”, because it featured some uncleared public sculpture in a few scenes.

If Rocky Mountain did get E&O insurance, then there are two possible options. 1) Their E&O company is incompetent (unlikely, it's a specialty area of the market, with few players, and they're very good), Or 2) RM played fast and loose with their E&O company to the extent that said company either thought that rights had been secured or they didn't know the song was in the movie.

( A disclaimer - I'm not a lawyer. I don't even play one on TV. I’m an engineer, but I spend most of my professional time these days designing custom digital technology for the film and video industry; 80% of my work is in the production and post-production environment )

Here is a resource for documentarians regarding 'Fair Use...'
http://www.centerforsocialmedia.org/files/pdf/fair_use_final.pdf

"One: employing copyrighted material as the object of social, political or cultural critique.
Two: quoting copyrighted works of popular culture to illustrate an argument or point."

Seems to fit... I doubt you have to stay on any overriding argument (ie: discrimination of creationist scientists in Academia). A wiki on fair use seems to have some cases referenced...

My son got a free pass to Expelled last night and gave me a report.

Imagine had the lyrics playing-- "Imagine if there was no religion"-- over Stalin's image...something a little different than Lennon was attempting to portray.

Of course the Expelled people have the right to express their opinion contrary to Lennon's. Can they use Lennon's lyrics and music to convey the opposite of what he intended? I don't think so.

Oh and over at Pharyngula, 'the barefoot bum' linked to this examination of the issue:
http://metamagician3000.blogspot.com/2008/04/expelled-defended-on-one-point.html

MONIQUE BUTANI: Check out my latest post on Expelled: the numbers are in" Good nite fools! See you around!

mezzobuff writes... “One: employing copyrighted material as the object of social, political or cultural critique.

"In all fairness, this is an issue of 25 seconds out of the full song."... which might be fine as a personal assessment, but as a legal one, it’s entirely irrelevant.

Actually "amount and substantiality of the portion used in relation to the copyrighted work as a whole" is by statute one of the four things that courts are supposed to take into account in determining whether Fair Use applies. I don't know how relevant that would be though in the context of either this particular situation or case law.

As stevaroni notes though this is a very well settled legal area, so if you could find someone who knows about copyright law you could probably get clear answers and maybe even some specific relevant precedent pretty easily...

Most TV commercials are 30 seconds, and they sure pay for use of songs and music.

And "Imagine" is one of those songs that show up in commercials all the time. I would not be surprised to learn that 25 second uses of "Imagine" constitute a significant portion of Sean Lennon's income (since, sadly, Into the Sun remains woefully underrated).

Unfortunately for the Premise people whatever defence they decide to go with is going to have the thorn in the side of their original comment that they made before they were sued.

They claim that the reason they're okay to use it is because the use was momentary, which is an horrible urban legend about copyright violations right up there with "Oh you can download a ROM as long as you delete it within 24 hours." Such an admission will be able to be used to show that the defendants were ignorant of the law which is absolute hemlock in a court of law. They made no claim as to they were using it to make a point and that can be used against them in court. It will undoubtedly come up in trial.

"Imagine had the lyrics playing– “Imagine if there was no religion”– over Stalin’s image…something a little different than Lennon was attempting to portray.

....Can they use Lennon’s lyrics and music to convey the opposite of what he intended? I don’t think so."

Didn't Stalin want a world without religion?

"Stalin took steps to limit the power of religion in the USSR. Churches and mosques were closed and converted into schools or movie theaters. Religious icons were melted down, and meetings were banned throughout the country. Religion was forced to go underground, in order to hide from the prying eyes of Stalin's police."
(Source: http://olc.spsd.sk.ca/DE/history20/unit2/sec1_07.html)

Before you say Lennon didn't want to use violence to bring about his fantasy world; how exactly would one get rid of religion in the world if not through violence?

Devil's Advocate: Before you say Lennon didn't want to use violence to bring about his fantasy world; how exactly would one get rid of religion in the world if not through violence?

Executive Producers of EXPELLED: No Intelligence Allowed Statement on Lawsuit by Yoko Ono The fair use doctrine is a well established copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism.

We are disappointed therefore that Yoko Ono and others have decided to challenge our free speech right to comment on the song Imagine in our documentary film.

Based on the fair use doctrine, news commentators and film documentarians regularly use material in the same way we do in EXPELLED: No Intelligence Allowed .

Premise Media acknowledges that Ms. Yoko Ono did not license the song for use in the Film. Instead, a very small portion of the song was used under the fair use doctrine.

Unbiased viewers of the film will see that the Imagine clip was used as part of a social commentary in the exercise of free speech and freedom of inquiry. Unbiased viewers of the film will also understand that the Imagine clip was used to contrast the messages in the Documentary and that the clip was not used as an endorsement within Expelled.

Before you say Lennon didn’t want to use violence to bring about his fantasy world; how exactly would one get rid of religion in the world if not through violence?

By writing gushy songs with obnoxiously brain-infecting piano hooks promoting your ideas, which then get repeated worldwide for decades, thus introducing your ideas to millions and millions and associating those ideas with the usually positive emotions the music itself engenders?

Seriously, have you ever listened to the song's lyrics after the first 25 seconds? It practically addresses your question by itself. The whole thing is about bringing about seemingly unrealistic goals through mere hope and positivity.

PvM: In all fairness, this is an issue of 25 seconds out of the full song.

Monique has lost it...

Less than a month ago I conjectured with tongue in cheek that the debacle that was unfolding as Expelled approached release was deliberate, a ploy to get sympathy for the poor persecuted creationists. As the screwups pile higher and higher, I'm afraid I have to abandon my conjecture: They really are that stupid and inept.

Monique has lost it…

As some people seem to be timing the music extract at 10 seconds and others at 25 seconds, can we be reasonably certain that all the copies of the film are the same?

RBH . . . you did say they were creationists . . . .'nuff said. Inept and stupid are synonymous with the appellation "creationist".

Richard Simons: As some people seem to be timing the music extract at 10 seconds and others at 25 seconds, can we be reasonably certain that all the copies of the film are the same?

Premise earlier said they used less than 28 seconds of the clip. The final release had that about 12 seconds, so they either lied or cut the clip back. About 10 minutes were cut from the film shortly before release. But time is not the issue - awards have been made for less than 10 seconds if the song is audible and recognisable.

They have a fair use case based on critique - how good it is is another matter. They will try to show that they used the song to critique the message that atheism would eliminate war. They will dress up the argument so that Ben thinks that John Lennon was necessary for the Soviet Union to be formed. The case will be heard by a judge who will not be swayed by emotional appeals. With any luck he/she will be a Bush appointed right wing conservative liberal ACLU type like Jones

EMI & Ono have a deeply held doctrine "thou shalt not steal music - especially not ours" and deep pockets so some serious cash will change hands - even if it ends up in the lawyer's pockets

Oh and over at Pharyngula, ‘the barefoot bum’ linked to this examination of the issue

I am an Australian writer, philosopher, and critic.

I hope Yoko Ono and Lennon's sons will have the temerity to go after the Disco Tute too, since they've become the unofficial "public relations firm" acting on behalf of Premise Media. It would serve these Xian Fascists well, having to confront their "sins" in a public setting such as a New York City courtroom.

Cheers,

John

IANAL, but I do work in the music industry, and have dealt with copyright issues on many occasions. Here's my understanding:

1) Since they did not excerpt the work for review or criticism OF THE WORK itself, fair use doesn't apply.

2) The producers of a film MUST secure synchronization rights from whoever holds the publishing rights to the song.

Personal opinion: the filmmakers knew this, and knew that the fair use defense wouldn't hold up in court. They saw it as another way to get free publicity and make themselves look like martyrs.

I'm thinking that the use of Imagine is the musical version of quote mining, because the implication by Stein and co. is opposite that espoused by Lennon. Is there any possible claim of liable that might come out of that? IANAL.

In what context is this used in the movie? I mean the lyrics pretty much blame religion and politics for most of humanity's problems. Did they somehow use it as a pro-religion song?

It doesn't matter, Kevin. They didn't make fun of the song or comment on the song itself. They used it as 'background'.

They're screwed.

wow, they put it over the picture of Stalin. Were they trying to blame Lennon and Darwin for Stalin? Or maybe they figure Lennon was trying to say imagine how evil the world would be without religion. I can't imagine that from a guy more popular than Jesus (heh Beatles trivia pun)

BTW, I believe the cut-off for using a clip of music and not paying for it is around 10 seconds. If I remember correctly that's what we were told when we made a film trailer for our student union group to be shown before campus movies. THe trailer was around 15 seconds and we had to cough up a fee for the use of the music.

Yoko Ono and her lawyers have been dealing with this stuff for decades. I'm sure that they have run into just about every situation that could arise, and know exactly what they are doing. I am also sure that they would not waste money on a frivolous case. My bet is that the makers of Expelled are going to pay dearly for this one. As for publicity stunts: I can imagine that these guys would have no qualms about raking a few poor scientists over the coals. But Yoko Ono is the Big Time. They would have to be real fools.....oh, wait.

Of course this is about free speech. The problem for the producers of Expelled is that it is the speech of John Lennon which should be free; his music should be used to express what he meant it to express. Taking something and perverting its meaning is as great a restriction on free speech as preventing its expression in the first place.

Ben Stein and the others have the right to free speech. But is their own speech which they may use freely.

Finally a reason to like Yoko Ono.

There is no 'cut-off' length, Kevin. They did not engage in 'fair use'; they used a song without permission - quite possibly because they're dumber than a dead armadillo with gout.

They're screwed.

Apologies, Rilke's Granddaughter, i wasn't trying to provide a defense for them, there is no way this comes under fair use in a for profit film. even at 10 or 15 seconds they're screwed. I was shocked they used an anti-religion song and wondered how they could think it supports the film somehow.

Generally fair use works when providing criticism or education about the work being used. Just playing a clip with no comment about the song itself isn't criticism or education about the song. They're going down.

Copyright office's notes on fair use are here:
http://www.copyright.gov/fls/fl102.html

Sunspiker said:

Next thing it’s Big Music that’s oppressing ID ….

Unbiased viewers of the film will see that the Imagine clip was used as part of a social commentary in the exercise of free speech and freedom of inquiry.

Fair use came into the copyright statute in 1976 from previous judicial law. 17 USC 107 lists 4 non-exclusive factors that may be used to determine whether or not fair use exists. These factors are:

(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.

Copyright law in general has a large white-hat / balck-hat element---if the situation seems unfair to the copyright owner, the law gets tweaked toward infringement. Analyzing fair-use situations requires a lot of experience, and mine is limited, and does not extensd to the entertainment industry in particular.

"Commercial" use (#1) is a big negative factor; it you're using the material for economic gain, you're on the slippery slope away from fair use. Factor #4 is important for the inverse reason---the infringer takes food out of the mouth of the owner.

Purpose of the copying (#1) is important. More leniency is given to copying for comment, criticism, and parody than to other purposes, even if some other factors are denigrated. For example, extensive quotes for scholarly criticism of a book is more permissible, even if it decreases sales of the book.

factors #2 and #3 go together. For example, copying entire paragraphs from a book might be OK, but copying a single recognizable phrase from a song, not matter how short, might not, because it suggests the whole song.

The 4 factors in the statute are not the only ones that can be considered. It is quite possible, for example that fair use might be narrowed in this case because the song is used in a context contrary to its intended meaning, or that this copying sullies the reputation of the singer. (My own opinion is that use of this song can't make it as "social commentary"---especially since its use is contrary to the spirit of the lyrics.)

Having worked myself in the computer industry, where people deal with each other fairly honorably, I find it inconceivable that Premise Media would consider using even a few seconds of a widely-known popular song without permission. My curb-stone opinion is that reducing the duration of the song from 25 seconds to about 10 seconds would make little difference as to fair use.

Another factor, of course, is the DVD and follow-on sales. Is it feasible for PM to re-do them? What about those already distributed? Then, too, the individual theaters infringe the public-display rights of the copyright owner---they are liable. Perhaps they have indemnity from the producers or from their E&O insurance---although generally E&O does not cover deliberate illegal acts.

Quite aside from the copyright liability issues, I wonder about the effects of these acts on the careers of the people involved. An animation studio or a sound mixer or other technical people who knowingly participate in this kind of activity may have trouble finding gigs in the future. premise media knows all this, and their people know the industry; they may have a strategy, nefarious though it may be. Therefore, it seems more important than usual to investigate what their true aims are for Expelled, and not to take things at face value.

Great post, Olorin. I commented on this same issue in an earlier post. This part:

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

Seems especially important in this case. It seems very hard to deny that this use dilutes the value of the licensing rights for the song. If a 25 second for-profit use is allowed, why can't Ford put it in a car commercial without paying for a license?

How is the Imagine used in the film? I heard that Stein said (HT Reginald): "Dr. Myers is just ripping a page out of John Lennon’s songbook" and then showing Stalin.

IANAL, but that sounds at least marginally like commentary and farce at the song's expense. The claim is that the ideas espoused in Lennon's song are dangerously naive because they lead to Stalin.

So the defense has a proper shot at fair use, no? I see no requirement that the parody and commentary has to be insightful.

One thing I'd like to hear from some legal experts is whether fair use jurisprudence makes distinctions between actual critique of a song and something that is simply critique of a song "in name only". Does adding a snippy derisive comment before playing it really cut the mustard, or would that be interpreted as merely being a thin gloss on top of what is really an attempt to add a certain mood to the scene?

The amount doesn't matter - holders of copyright have to demonstrate that they have attempted to protect their copyright; if they fail to do so, any subsequent attempts can be characterized as just going after potentially moneyed targets or selective malice. This, also, would not be "fair use" by any stretch, nor is it parody. Parody would be making fun of the song through, well, parody. And this isn't it. Critique would be quoting the song for the purposes of critiquing the song. Again, not it. Fair use for educational use would be including it as part of a discussion of songs of an era, or as an example of a particular philosophy. Again, no dice. By inclusion of the other imagery, they've botched that argument. They created a derivative work using a substantial unmodified portion of a copyrighted work for commercial purposes. It doesn't matter how much of the derivative work is made up of the copyrighted work; it matters how much the copyrighted work is used in an unmodified form.

The amount doesn’t matter - holders of copyright have to demonstrate that they have attempted to protect their copyright; if they fail to do so, any subsequent attempts can be characterized as just going after potentially moneyed targets or selective malice.

I am fairly certain that this is not true for copyright; as far as I am aware it is only trademark where "use it or lose it" applies.

Whilst this is good news in some respect it will be a shame if this becomes the overriding reason this film bombs. If this happens it will become the 'film that was silenced for money, even though the message was important'?

It would be far better for it to fail for the right reason - it is a poorly made, intellectually dishonest piece of propaganda that failed to con even it's target audience. Either way it looks doomed.

What follows is P-A-R-O-D-Y (c) k.e. and must not be sung to Mr. L's "Imagine"

Imagine there's no Law on Earth

It's easy if you try

As it is in Ben Stein’s Heaven

His cash registers only cry

Imagine all his lawyers

Leaving before they’re dry.

Imagine there's no Science

It isn't hard to do

Nothing to learn or quest for

And no peer review too

Imagine all the people

Living life in ignorant bliss

You may say that I'm a dreamer

But I'm not the only one

I hope someday you'll join us

And the world will be as Jerusalem 2000 years ago

Imagine no copyright

I wonder if you can

No need for art or musicians

And just music thiefs

Imagine all producers

Stealing all that loot.

You may say that I'm a dreamer

But I'm not the only one

I hope someday you'll join us

And the film world will dine out on Ben Stein.

(sorry about formatting, best I could do, shakes fist at formatter)

Presumably, even though neither the trivialisation of the Holocaust nor the "Crossroads" deceit practiced on the interviewed scientists is germane to the copyright case(s), the circumstances are not going help the film makers in their attempt to demonstrate their competency and that the film was made in good faith...

Incidentally, did they manage to not drag Kitzmiller/Dover into "Expelled"?

sorry about formatting, best I could do, shakes fist at formatter

I've worked in music copyright, and in addition to the usual copyright of a work, there is also a moral right, which basically safeguards you against having your work used in or alongside something which is against your moral or political views, thus protecting you from people getting a false impression of you and your work. If the film makers have used 'Imagine' over footage of Stalin, then they're basically likening the song and its composer to values and politics associated with Stalin... even just by using it in the film, they're implying that the composer agrees with their political and religious views. Like the usual copyright, this is something that should have been cleared beforehand. It sounds like Ono doesn't need to invoke this right, but if she wants to, she can. They are definitely screwed. Ha.

k.e.: What follows is P-A-R-O-D-Y (c) k.e. and must not be sung to Mr. L's "Imagine"

IANAL, but I am a Beatles fan. I sure wouldn't want Yoko mad at me. She's got a TON of money for lawyers and she's very protective of John.

I presume that they used this song over an image of Stalin because he succeeded Vladimir Illyich Lennon?

I have no doubt that Yoko Ono will succeed in taking down Expelled. After all, she single-handedly took down the Beatles, who were at the time, as we all know were, "bigger than Jesus".

In comparison, this should be a piece of cake.

;-)

Rilke's Granddaughter said: dumber than a dead armadillo with gout

Stella... good to hear from someone in the biz!
OK, so talk to me: The film makes the argument that atheism leads to Nazism, and uses Lenon's song to illustrate the atheistic idea over the Nazi images. So does the 'moral right' trump the ability of the filmmaker to quote the song as illustration of a point (in contention here on the boards)? If that is the case, maybe the Killers DO have recourse (should they choose to take it) in that they were deceived regarding the content of the film and would not have given permission to use the song as it implies that they agree with the film's ideas... hmmmm...

It does seem like an artist of any sort should be able to prevent their work being used or twisted to espouse ideas that they strongly disagree with... and this would be a good example of that for sure.

This is a complicated issue, and one that would probably have to be decided in court.

As a former filmmaker, I can tell you that you can't use music under fair-use simply because it's "ironic," which seems to be the case here. For instance, if I were making a nonfiction film about the irony of the way 1950's were portrayed on screen, I would not be able to use music from the era simply because it directly conveys the irony of the point I'm trying to make.

CUE: "Mr. Sandman" (specifically, "Oh Mr. Sandman, bring me a dream..."

Video: Shots of post-WWII suburban houses being built.

Assume: I am in disagreement with the song's message. I do not like the houses being built.

I think you can see, I am using the song for the same reason here. My film's argument would be that the houses looked like a dream, but they weren't really. Just because the song fits perfectly with the point, does not mean I can use it.

If I were able to do this, essentially Fair-Use could be claimed for just about everything. This argument would have much more validity if the section of the film were *directly* commenting on the message of Lennon's lyrics, but even then, someone who did not want to risk getting sued, would probably not use the song without permission. Alternatives would be to have someone read the song's lyrics, which would immediately convey an analysis of the lyrics. Of course, even then I'd get it cleared with the lawyers, but at least I'd be a lot closer to fair use.

In this case, Stein is making apparently making a point about what world without religion would be like. Just because there is a popular song that asks the same question, does not mean Expelled has fair use on that song. I predict an uphill battle for Expelled on this one.

Also, is the copyright fair use different for film (documentaries)? It seems like there is a slightly different set of factors that filmakers can quote to back fair use according to the Center for Social Media... it seems to be a good resource, but maybe its crap?

Thanks Thom! That is clears it up a little more for me...

Longtime lurker here--finally couldn't resist commenting on this one!

I recall an interview with John Lennon in which he mentioned that the Hare Krishnas had asked him for permission to use Imagine. They just wanted to make one eensy-teensy change to the lyrics: "Imagine one religion..." He gave them the peace sign--backwards...

And herewith is my modest proposal for a much more apropos Lennon tune for Expelled...
(with grievous apologies to the Late Mr. L.)

I'm sick and tired of hearing things


From uptight, bible-thumping cdesign proponentists


All I want is the truth


Just gimme some truth





I've had enough of reading things


By well-funded, IDiotic, crypto-fascist evo-critics


All I want is the truth


Just gimme some truth





No short-statured, mono-tonal, speech-writer for Tricky Dicky


Is gonna stealth-agenda pseudo-science me


With just more Jack Chick cartoons


Crying "Waterloo soon!"


What a buffoon!





I'm sick to death of seeing things


From un-vetted, fossil-headed, Moonie's little propagandists


All I want is the truth


Just gimme some truth now





I've had enough of watching scenes


Of close-minded, quote-mining, personal incredulitists


All I want is the truth now


Just gimme some truth





All I want is the truth now


Just gimme some truth now


All I want is the truth


Just gimme some truth


Anyone? Anyone?

Bueller??!!

Thom Denick: As a former filmmaker, I can tell you that you can't use music under fair-use simply because it's "ironic," which seems to be the case here.

For instance, if I were making a nonfiction film about the irony of the way 1950's were portrayed on screen, I would not be able to use music from the era simply because it directly conveys the irony of the point I'm trying to make. CUE: "Mr. Sandman" (specifically, "Oh Mr. Sandman, bring me a dream..." Video: Shots of post-WWII suburban houses being built. Assume: I am in disagreement with the song's message. I do not like the houses being built.

I think you can see, I am using the song for the same reason here. My film's argument would be that the houses looked like a dream, but they weren't really.

It does seem like an artist of any sort should be able to prevent their work being used or twisted to espouse ideas that they strongly disagree with...

"Which is not analogous to what Expelled is doing at all. There’s not a hint of irony in saying that Lennon’s atheism, as stated in Imagine, leads to Stalin."

Tyler DiPietro:

"Which is not analogous to what Expelled is doing at all. There’s not a hint of irony in saying that Lennon’s atheism, as stated in Imagine, leads to Stalin."

"...Nothing to kill or die for, no religion too...."

GuyeFaux:

It does seem like an artist of any sort should be able to prevent their work being used or twisted to espouse ideas that they strongly disagree with...

I think you're missing the point of parody.

Stella: I've worked in music copyright, and in addition to the usual copyright of a work, there is also a moral right, which basically safeguards you against having your work used in or alongside something which is against your moral or political views, thus protecting you from people getting a false impression of you and your work. If the film makers have used 'Imagine' over footage of Stalin, then they're basically likening the song and its composer to values and politics associated with Stalin... even just by using it in the film, they're implying that the composer agrees with their political and religious views. Like the usual copyright, this is something that should have been cleared beforehand. It sounds like Ono doesn't need to invoke this right, but if she wants to, she can. They are definitely screwed. Ha.

I can't believe this stupid movie has us all debating the details of Fair Use and Copyright law... ugh

I can’t believe this stupid movie has us all debating the details of Fair Use and Copyright law… ugh<\quote>

It was all part of the plan to get us off the substance (ummmm, I mean lack of substance) of the movie. Man those creationists can always think so many steps ahead of us evilutionists.

If it was a humorous or satirical take, there is a lot of wriggle room, I think— I was thinking more along the lines of what this movie seems to be doing. So in this case, do you think Stella is wrong: is there no “moral right” that she talks about in her post?

GF---totally get your point (you crazy IP law marxist, you ;) )!
I'm a classical musician, so we don't deal with this issue too much (unless recording or performing new pieces). Just trying to get perspective on it: I want artists to get their due ($$ and otherwise), but also want other artists/satirists to be able to create what they want to create as well... and then there is that outrage button about using a Lenon song like Imagine in such a blatantly awful way (in my opinion). Sigh... I think I'll go back to looking at music scores again... easier to wrap my mind around Berg than this stuff.

Stella (152561) thinks that moral rights can nail Premise Media as to use of the Lennon song. Europe has comprehensive statutes granting moral rights. The US, however, has always resisted this concept; the only statutory moral rights protect only graphic works (17USC106A), and offer only limited rights. Some courts have employed copyright-law provisions against "derivative works" to nail infringers who have distorted a work or used it against the author's intent. Some states have moral-rights statutes, but these are also limited and infrequently applied. Laws dealing with defamation, privacy, and publicity might also be invoked. Overall, in the US, moral rights remain undeveloped and difficult to apply.

Tyler DiPetro (152527) asks whether fair use distinguishes between actual critique of a song and something that---if I understand his question---critiques something else using the song. I don't know of any cases on this point, but the spirit of the "criticism" and "parody" factors in fair use indicates to me that fair use extends only to criticizing or parodying the song itself. Otherwise, where would fair use end? I think Pat (152536) and Thom Denick (152596) have the right take on this.

mezzobuff (152598) asks whether fair use differs for documentaries. Fair use differs for the copying of fact-based works, because the original author can't copyright the underlying facts, only their expression. However, this is the inverse situation--a supposedly "fact-based" work copies a song that is not based upon facts---therefore, the rules for songs govern, not the rules for documentaries.

Again, my legal experience does not extend to the entertainment industry, and experience is important in deciding copyright questions. It seems incredible that Premise Media does not avail itself of experienced legal help. Therefore, I suspect that they have some kind of strategy for dealing with these claims, such as a deep slush fund (or, in their case, a slime fund).

PS: I'm with mezzobuff (152635) on musical Marxism, and for the same reason.

All this legal posturing is driving me to drink...at least just a wee bit more than usual.

What I'd like to know... is there any money at the end of the civil law rainbow?

Who is being sued and can they affords either lawyers or settlement?

Is there a deep-pockets money bag...like an insurance company?
If so, is copyright infringement covered? And...if the application for coverage is a "signed warranty application" and they (ahem) "misrepresented" their possession of permission to use all copyrighted works then fraud in the inducement is a valid reason to void coverage for that claim.

All may be revealed in time. The discovery process will reveal all (unlike the other Discovery process) in time. Legal process is no fun but it beats throwing bricks or a punch in the nose.

So what about the fact that Michael Jackson owns (owned?) the publication rights to many of the Beatles' songs. While Yoko Ono may own the rights to the Beatles performances, Jackson acquired the rights to the text in 1985. In fact, McCarthy could not legally print the text of his songs in his concert literature.

Since the movie Expelled is rumored to have reproduced the actual words of the song, one wonders if they have obtained the necessary rights from Michael Jackson. Or does the 'fair use' defense applies again?

What's Michael up to these days?

Science Nut asks: What I’d like to know… is there any money at the end of the civil law rainbow?

Oops, I think the whole url should have been http://www.benedict.com/Visual/Visual.aspx

(I'm still getting used to the "embed hypertext" thing.

PvM,
Imagine is not a Beatles' song. It was written and performed by John Lennon several years after the Beatles broke up. The copyright belonged to Lennon only, then passed to Yoko Ono. AFAIK, Michael Jackson has possession of the copyright to Beatles songs only.

PvM, Imagine is not a Beatles’ song. It was written and performed by John Lennon several years after the Beatles broke up. The copyright belonged to Lennon only, then passed to Yoko Ono. AFAIK, Michael Jackson has possession of the copyright to Beatles songs only

PvM: What's Michael up to these days?

Had a chat with an entertainment lawyer friend of mine yesterday and last night (I know, I know...admitting such will likely get me barred from further PT priviledges...[g]) and his take is pretty much that Expelled should settle now. He worked with rock bands for a number of years and copyright infringement was a prominent issue. Basically his take is that unless the movie *overtly* implies commentary (even parody) on the song itself and/or Stein comments directly on the song, they're not in a position to claim Fair Use no matter how short the piece was. No intellectual property can be used to impart any sort of *feeling* or as background ambience about someone's else's opinion or work that's being presented for profit without permission. He says that it's very cut and dry stuff and by and large the courts mostly side with the property owner even in vague situations. When I noted that the property owner in this case was Yoko Ono (I didn't want to go into too much detail at first as I wanted just a general professional take), he said his money's on Yoko and her attorneys. Ouch.

Hi all,

Here's a demented "Imagine" parody by an Uncommon Dissent poster, Allanius, which was posted there earlier today:

"Imagine there’s no Darwin;
It isn’t hard to do.
Nothing to spin and lie for,
And no Big Science, too.
Imagine all the people
Using their own minds…"

"Imagine there’s no theories,
Only things that are real;
No transperm or evo devo,
No secret wisdom to reveal.
Imagine all the people
Using common sense…"

"You may say I’m a dreamer,
But I’m not the only one.
I hope some day you’ll join up,
‘Cause we’re really having fun."

"Imagine there’s no bullies,
Hitlers in Birkenstocks;
No more indoctrination,
Or tenure chopping blocks.
Imagine all the people
Talking about God…"

"Imagine there’s no Dawkins
No faux philosophers;
No raving Darwinistas,
Or tall tales to rehearse.
Imagine all the people
Thinking for themselves."

"You may say I’m a dreamer,
But I’m not the only one.
I hope some day you’ll join up,
‘Cause we’re really having fun."

He's obviously enjoying his membership in the Disco Tute IDiot Borg Collective.

Regards,

John

Jackson received word February 25, 2008 from Financial Title Company, the trustee, that unless he pays off $24,525,906.61 by March 19, a public auction will go forward in Santa Barbara, Calif., in front of the county courthouse. Along with the land and buildings, other things on the property would also be up for auction, such as the rides, trains, art, and curtains. On March 13, 2008, Londell McMillan, Jackson's lawyer, announced that a private agreement had been reached with the private investment group, Fortress Investment, to save Jackson's ownership of the ranch. Before the agreement, Jackson owed three months' arrears on the property. McMillan did not reveal the details of the deal. As of March 13, it has been confirmed Mr. Jackson still owns Neverland.

Flint: No, the Neverland Ranch was not auctioned off.

Here’s a demented “Imagine” parody by an Uncommon Dissent poster, Allanius, which was posted there earlier today:

From: News Issues and Guests Division * [mailto:newsissues_guest@bellsouth.net]

Sent: Thursday, April 24, 2008 2:14 PM

To: (My Wife The Journalist)

Subject: EXPELLED Producers to Yoko Ono: Let it Be

April 24, 2008, For Immediate Release! Contact Tricia Erickson at casting 33@aol.com or 910-270-8966

From: Motive Entertainment

EXPELLED Producers to Yoko Ono: Let it Be

(Dallas, TX) - A new front has been opened in the culture wars. Ben Stein's EXPELLED: No Intelligence Allowed stunned detractors by opening as the nation's #10 movie last weekend. Out for less than one week, it has already become one of the top 25 documentaries of all time.

Opponents of the film have attacked everyone and everything in it. They have attacked the producers, the star, the music, and film itself. They have even attacked those who have seen it. Now they want to change the Constitution.

Yoko Ono and others have now filed lawsuits challenging the film's use and critique of John Lennon's song Imagine. One of the suits seeks to ban free speech through preliminary injunctive relief which essentially means that they are trying to expel EXPELLED as it is now being shown in theaters.

"If you really listen to the lyrics of Imagine then you realize that it represents everything that the Neo-Darwinists want. 'Imagine there's no Heaven...No hell below us...Nothing to kill or die for And no religion too...' That's exactly what the Darwinist establishment wants to do: get rid of religion. And that's what we point out when we play less than 15 seconds of the song and show some of the lyrics on screen," said Walt Ruloff Executive Producer and CEO of Premise Media.

Executive Producer and Chairman of Premise Media Logan Craft explained, "The fair use doctrine is a well established principle that gives the public the right to freely use portions of copyrighted materials for the purposes of commentary and criticism. While some may not like what we have to say or how we say it, we have the free speech right to do so - just as other political and social commentators have been doing for years."

Premise did not pursue a license for the song and had no obligation to do so. Unbiased viewers of the film will see that the Imagine clip was used as part of a social commentary in the exercise of free speech. The brief clip - consisting of a mere 10 words - was used to contrast the messages in the documentary and was not used as an endorsement of EXPELLED.

But the irony of this lawsuit was not lost on the film's star Ben Stein, "So Yoko Ono is suing over the brief Constitutionally protected use of a song that wants us to 'Imagine no possessions'? Maybe instead of wasting everyone's time trying to silence a documentary she should give the song to the world for free? After all, 'imagine all the people sharing all the world...You may say I'm a dreamer But I'm not the only one I hope someday you'll join us And the World can live as one.'"

[snip bio blurbs for A. Logan Craft, Walt J. Ruloff, Mark Mathis]

For interviews, contact Tricia Erickson at casting33@aol.com or 910-270-8966

If you would rather not receive future email messages from Angel Pictures News Issues and Guests Division, let us know by clicking here.
Angel Pictures News Issues and Guests Division, * *, *, DC 20006 United States

So now enforcing copyright law is an attempt to rewrite the constitution? The judge will rule on whether Yoko will be awarded damages or not. How does that affect the constitution? And when they lose, the lawbreaking retards will just claim persecution anyway.

If they really argue that this constitutes "fair use", there could be a lot of movies made using Onward Christian Soldiers while showing the planes crashing into the World Trade Center. Do you think the producers of such a movie would not be sued if they failed to obtain permission to use the song if it were copyrighted?

But the irony of this lawsuit was not lost on the film’s star Ben Stein, “So Yoko Ono is suing over the brief Constitutionally protected use of a song

The right to "free speech" is not the right to use someone else's speech for free, especially when you are trying to imply that they were wrong. If these guys are so keen on free speech, why didn't they say something? Why did they just "take a page out of Lennon's book"? Man, these guys are so dumb they probably think that the right to bear arms means that you can wear short sleeves without being arrested!

Now if they had any scientific theory, or any evidence whatsoever, wouldn't this have been the perfect time to show it? After all, this was supposed to be a blockbuster documentary that millions would see, what a perfect opportunity. Did the evil Darwin conspiracy prevent them from presenting their own theory in their own movie? Man, those guys are good, better not cross them.

I hope this is not considered plagerism:

Imagine there's a movie, it's easy if you try

So full of bull$#it, smelling up the sky

Imagine all the people, repulsed by all the lies,

You say they are screamers, well I am one too.

Truth is found in science, and now EXPELLED is through.

David Stanton ponders.... If they had any scientific theory, or any evidence whatsoever, wouldn’t this have been the perfect time to show it?

They had their hour upon the stage, the very thing they consistently complain is denied to them. What happened? Turns out they had nothing to say.

Stevaroni and Flint,

I couldn't agree more with the points you guys make. However, think about how stupid and willfully ignorant a person would have to be to fall for this routine. You would have to be a complete moron to accept the following line of reasoning:

"I'm being repressed, they don't want me to talk to you."

"Well, you're talking to me now, so I guess they weren't so good at stopping you. What do you have to say that's so important"?

"I tell you I'm being persecuted. If they even suspected that I was talking to you they would kill us both, just like they killed all those Jews."

"OK, so now they can't stop you, go ahead, what do you know that's so important."

"Aren't you listening to me? I told you, they killed all those Jews and now they don't want me to tell you all the things I know."

"So, what do you know? Go on, they can't stop you now."

"Don't you get it man, they won't let me talk about it. I've got all this evidence and no one will listen."

"I'm listening. Go on, show me what you've got."

"I've got definate proof that they won't like it if they find out I'm talking to you. I could spill the beans man, I swear."

"So, show me the evidence."

"I can't man, they're way too powerful. They won't let me tell you. I would if I could, but they really wouldn't like it, so I just can't. I can get you a copy of some music I downloaded for free though. Would you listen to me if I played it for you? Would that convince you?"

The problem for Premise in any lawsuit is that they have a history of copyright and honesty issues, all of which will come out in a lawsuit.

* Premise lied to several folks in order to secure interviews.
* They did seek a license from the band the Killers for one of their songs, but also mislead them about the movie. The Killers then demanded that their music be removed, Premise refused.
* They already in a legal battle with XVIVO for copyright issues on their video animations of the inside of a cell. According to Premise, those video segments will not be in the final film and that the ads, premotional DVDs (and presumably the film screenings) were for "educational purposes" only.
* They are also accused of lifting clips from a PBS special.
* They have a long history with the Discovery Institute, and Dembski has repeatedly made public statements about Premise intentially making their videos similar to invite lawsuits.

All this is going to come out in a trial. Whether the music clip is only twenty-five seconds long, they licensed some clips (also short duration), but not others? They lied to other folks to get licenses. Dishonest witnesses don't look good on the stand.

From the "OMG I can't believe even Dembski would say something this stupid" department:

http://www.uncommondescent.com/expelled/is-imagine-even-copyrightable/

Is it possible to copyright a song that disavows possessions (copyright being a form of possession)? Once Ono realizes the self-referential incoherence of her suit, I trust she’ll drop it.

Yeah.

Thanks, Boo, for that jaw-dropping Dembskism.

They really are that stupid after all.

Dembski asks... Is it possible to copyright a song that disavows possessions?

They did seek a license from the band the Killers for one of their songs, but also mislead them about the movie. The Killers then demanded that their music be removed, Premise refused.

David Stanton says... However, think about how stupid and willfully ignorant a person would have to be to fall for this routine. “I’m being repressed, they don’t want me to talk to you.”...

stevaroni said:

They did seek a license from the band the Killers for one of their songs, but also mislead them about the movie. The Killers then demanded that their music be removed, Premise refused.

Apparently, the description of the film's scope used in the Killers' deal was something to the effect of "a satirical documentary featuring comedian Ben Stein". Unfortunately, close enough that the Killers probably don't have a case.

Boo said: From the "OMG I can't believe even Dembski would say something this stupid" department: http://www.uncommondescent.com/expelled/is-imagine-even-copyrightable/ Is it possible to copyright a song that disavows possessions (copyright being a form of possession)? Once Ono realizes the self-referential incoherence of her suit, I trust she’ll drop it. Yeah.

Nigel D said: Besides, even if Yoko subscribed to the way of life espoused in Imagine back in nineteen-seventy-whenever, there's nothing that says she has to now. I mean, who here lived through the eighties and came out of them the same person they were in 1979?

David Stantaon said: So now enforcing copyright law is an attempt to rewrite the constitution? The judge will rule on whether Yoko will be awarded damages or not. How does that affect the constitution? And when they lose, the lawbreaking retards will just claim persecution anyway. If they really argue that this constitutes "fair use", there could be a lot of movies made using Onward Christian Soldiers while showing the planes crashing into the World Trade Center. Do you think the producers of such a movie would not be sued if they failed to obtain permission to use the song if it were copyrighted?

Bobby,

Please reread the last four words of my post.

Now, do you think that the producers of Expectorated, uh I mean Expelled, should be sued or not? Do you think they will win or not? Do you think that Darwin was responsible for Hitler or not? If somone stold a coyyrighted song to vilify Christianity, do you think they should be sued or not?

Perhaps you can explain to us why there is no science in Expectorated (oops there I go again).

Dear Bobby:

I was trained in invertebrate paleobiology and evolutionary ecology in graduate school. On what grounds can you claim that I don't understand what Steve Gould was saying (Indeed, what are your qualifications on being such a "superb" authority on the words and wisdom of Stephen Jay Gould? I strongly suspect that mine are much better than yours.).

No one I know of who claims to have knowledge of evolutionary biology would refer to it as "Darwinism". That's a term used, with ample sarcasm, by your intellectually-challenged fellow creationists. You should speak of "The Modern Synthesis" or contemporary evolutionary theory or "Neo-Darwinian Synthesis" when referring to current evolutionary theory. However, in all likelihood, I strongly suspect that this is a distinction which you, as an intellectually-challenged creationist, refuse to accept. Now run along and learn something about real science before posting more of your inane remarks here at Panda's Thumb.

Live Long and Prosper (as a DI IDiot Borg drone),

John Kwok

David Stanton said: Perhaps you can explain to us why there is no science in Expectorated (oops there I go again).

Bobby...On what grounds can you claim that I don’t understand what Steve Gould was saying