Expelled team “reject” lawsuit (along with science, reason, and reality)
Not a lot of people understand or even care about such things as Fair Use doctrine, but a few years ago, back in our podcasting days, the issue had the community a twitter. We even attended a couple of seminars on this specific subject at the 1st PME and Podcastercon. Rob Walch from Podcast411 covered this issue a number of times on his show early on. He also made it a mission to clear up a fairly common misconception amongst podcasters; which was that as long as a song clip was less than 30 seconds long, it was considered “Fair use.” Not true. And for obvious reasons. You simply can’t claim free speech as an end-all to copyright lawsuits.
Anyhow, this afternoon when I saw the press release from the Expelled crew responding to the lawsuit filed by Yoko Ono for the illegal use of Lennon’s “Imagine” in the film, I literally needed a moment to step outside and calm down before starting this post:
Yoko Ono and others have filed lawsuits against Ben Stein’s
EXPELLED: No Intelligence Allowed, 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.The Producers of EXPELLED reject the lawsuits and state that
Premise Media 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…
So now they’ve officially laid the fact that don’t even understand the law on the table.
Section 107 of the copyright act contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
Let’s see how Premise Media’s argument passes the factors for Fair Use test:
1.the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
Fail. It’s a commercial for-profit documentary.
2. the nature of the copyrighted work;
Fail. Many consider the song “Imagine” synonymous with Lennon, so the nature of the work has been historically significant to both the author and his legacy. A 26 second clip of a specific portion of the copyrighted song with specifically selected lyrics was used in this commercial documentary to accompany the filmmakers assertion that belief in science leads to genocide. The filmmakers did not even attempt to seek permission from the author’s estate, despite doing just that for all other copyrighted music on the film. This leads one to believe that they did not seek permission because they either could not afford it, or knew it would not be granted.Updated 4/27, thanks to Jay.
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole;
Fail. Although premise’s main argument is that they only used 25 seconds of the song, the copyright law is clear: There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
4. the effect of the use upon the potential market for or value of the copyrighted work.
Fail. Seeing as the lawsuit was spurred by bloggers accusing Yoko of selling John out… the use was obviously damaging to his image and legacy.
Oh, and you can’t mix and match those(a common tactic of christians in a number of situations)… if one factor excludes the usage, then it cannot be protected by Fair Use. In this case, Expelled doesn’t appear to meet a single requirement.
So, if these filmmakers can’t even grasp basic copyright law, who in their right mind would think they understand the biological processes or complex scientific theory they attempt to discredit in the film?
Way to go, guys… keep flying that ignorance flag real high.
ShotsFromTheBattery.com and NateandDi.com have officially merged as the on-line home of Nate and Di Fulmer. Formerly the site of The Nate and Di Show during the infancy of the podcasting movement, Shots from 
April 26th, 2008 at 4:56 am
Thanks for this quick summary of the events…none of the other atheist bloggers I read have said it so distinctly. (also if I didn’t say this before…YAY! for N&D blogging.)
April 26th, 2008 at 1:51 pm
[…] Addendum, April 26, 2008: Excellent discussion of the Fair Use Doctrine in relation to Expelled will be found at Shots from the Battery. […]
April 26th, 2008 at 1:54 pm
Excellent post! Thanks for sharing your knowledge.
April 26th, 2008 at 3:53 pm
Thanks guys!
April 27th, 2008 at 4:46 pm
Awesomeness
April 27th, 2008 at 9:49 pm
I’m not a lawyer, but as a webmaster I’ve studied up on copyright law some. I must disagree with your analysis.
1. Commercial vs non-profit. I agree on that point. This will work in favor of Ono and against Expelled.
2. Nature of the work. You seem to be interpreting this to mean that someone has less “fair use” right if the work is more “significant”. That’s not what this means. The point is not that you can freely steal from poor, obscure people but you cannot steal from rich and famous people. Rather, it’s intended to allow courts to distinguish between, say, a printed book and a billboard. Someone trying to take pictures on a street corner might have a hard time not including images of the billboard, and he can therefore argue in defense that its inclusion was incidental to the pictures he was taking. It is much harder to argue that your inclusion of whole chapters from someone else’s book within yours was unavoidable and accidental. In this case, there’s no obvious special cases for a court to apply. (There’s no question that the use was incidental, like my billboard example, but that was just one example, the first that happened to come to mind.)
3. Portion used. As you quote, there’s no set percentage. So where do you get that this is a “fail” for Expelled? They used two lines out of an entire song. It’s hard to imagine how any meaningful quote from a copyrighted work could be shorter. I would think this is a “win” for Expelled. If they had played the entire song or close to, that would be a failed.
4. Effect on the potential market. This is normally understood to mean that people would buy your copy rather than the original, thus undercutting the copyright-owner’s sales. The idea is supposed to be to prevent someone from copying another’s work and selling it as their own, and then trying to avoid copyright laws by saying that it was “fair use” because they stuck a paragraph of commentary in an appendix. In this case, I can’t imagine that any Lennon fans are going to buy a DVD of Expelled just to fast forward to this clip from Imagine rather than buying a copy of the album. The argument that this is giving Lennon’s estate bad publicity is interesting, but I doubt a court would take it seriously. Many copyright infringement suits complain that it wasn’t “fair use” because they don’t like the way their material was used. Courts have routinely rules against this argument. Presumably if someone is bringing a lawsuit, they didn’t like the fact that you copied them. If “I didn’t like what they did with my work” was the criterion than all copyright-infringement suits would automaticall win. If this worked, then no one would ever be able to quote someone else and then criticize them, and public debate would be seriously crippled. This is why the “fair use” doctrine was invented: So you could criticize your opponents’ arguments without having to first get their permision, which presumably they wouldn’t give unless they were very fair-minded.
As I say, I’m not a judge or a lawyer, and in something politically-charged like this, I don’t claim to know how a court would rule. But I think Expelled is on pretty firm ground: They quoted a short excerpt from a work in order to criticize it and comment on it in a documentary, which is generally considered a form of scholarship. “Criticism”, “comment”, and “scholarship” are explicitly listed in copyright law as examples of “fair use”.
April 28th, 2008 at 1:35 pm
Thanks for stopping by, Jay. I can tell you put a lot of effort into your comments, and we enjoy discussion on the posts, so I’ll take a quick shot at a response:
2. Nature of the work. You seem to be interpreting this to mean that someone has less “fair use” right if the work is more “significant”. That’s not what this means. The point is not that you can freely steal from poor, obscure people but you cannot steal from rich and famous people. Rather, it’s intended to allow courts to for distinguish between, say, a printed book and a billboard. Someone trying to take pictures on a street corner might have a hard time not including images of the billboard, and he can therefore argue in defense that its inclusion was incidental to the pictures he was taking. It is much harder to argue that your inclusion of whole chapters from someone else’s book within yours was unavoidable and accidental. In this case, there’s no obvious special cases for a court to apply. (There’s no question that the use was incidental, like my billboard example, but that was just one example, the first that happened to come to mind.)
I think you mangled our point — and the commonly accepted meaning of the term. This has nothing to do with rich/poor or any thing like that, and we in no way implied it was, as it is irrelevant and a distractionary non-point. ‘Nature of work’ means exactly what it says. “Imagine” is a song. It’s an audio recording. “Imagine” was authored and copyrighted by John Lennon. It’s a song many consider an important part of his legacy. A 26 second clip of a selected portion with selected lyrics was used in a commercial documentary. It’s not incidental if they needed those specific lyrics to make the point or punctuate the imagery. The defense of “incidental scoring” definitely wouldn’t apply, as lyrics are included. And the film crew didn’t just accidentally walk by a stereo playing that part of “imagine” during the scenes in which the song is used. Are you an Expelled crew troll?
3. Portion used. As you quote, there’s no set percentage. So where do you get that this is a “fail” for Expelled? They used two lines out of an entire song. It’s hard to imagine how any meaningful quote from a copyrighted work could be shorter. I would think this is a “win” for Expelled. If they had played the entire song or close to, that would be a failed.
So because there’s no set percentage, your position is that any percentage except 100 is acceptable? That’s plain nutz. There are established decisions on this. Courts have found that if the material is basic to the message, or instrumental in making a point, even if short, the usage is probably not minimal. Many cite Ringgold v. Black Entertainment Television. (using eight seconds’ coverage of an artist’s piece, in a thirty minute television show, is not “de minimis”)
4. Effect on the potential market. This is normally understood to mean that people would buy your copy rather than the original, thus undercutting the copyright-owner’s sales. The idea is supposed to be to prevent someone from copying another’s work and selling it as their own, and then trying to avoid copyright laws by saying that it was “fair use” because they stuck a paragraph of commentary in an appendix. In this case, I can’t imagine that any Lennon fans are going to buy a DVD of Expelled just to fast forward to this clip from Imagine rather than buying a copy of the album. The argument that this is giving Lennon’s estate bad publicity is interesting, but I doubt a court would take it seriously. Many copyright infringement suits complain that it wasn’t “fair use” because they don’t like the way their material was used. Courts have routinely rules against this argument. Presumably if someone is bringing a lawsuit, they didn’t like the fact that you copied them. If “I didn’t like what they did with my work” was the criterion than all copyright-infringement suits would automaticall win. If this worked, then no one would ever be able to quote someone else and then criticize them, and public debate would be seriously crippled. This is why the “fair use” doctrine was invented: So you could criticize your opponents’ arguments without having to first get their permision, which presumably they wouldn’t give unless they were very fair-minded.
No one honestly thinks that fans will be buying Expelled for a 25 second clip of “Imagine” mixed in with that propagandist crap, that much is for sure. But displaying images of the holocaust and other social ills scored by his music and using a portion of his lyrics to possibly suggest that he supported the ideals that led to those images could arguably be quite damaging to his image, legacy, and record sales - falsely damaging. This is about dishonesty and revisionism, not criticism.
If the use was a critique of John or his music, your argument for fair use would possibly apply. That is unfortunately not the case here. It would be debatable in this case that Premise hijacked John’s song to deliver their message. An artist and his family should have the right not to have his work used to illustrate any radical for-profit project or cause someone else chooses. What’s the point of a copyright, otherwise?
I’ll admit we don’t have an extensive education on copyright law, and I can’t say the greater implications of an Expelled win doesn’t excite my inner anarchist a bit… we’d have great fun with that. But it ain’t gonna happen.
I really think the crux of the case will be on whether the producers acted in good faith. Which, by their own admission, they did not. They sought and got permission for every other tune in the flick, but mysteriously failed to do so with Ono. Hmmmmm. And according to the DOCUMENTARY FILMMAKERS’ STATEMENT OF BEST PRACTICES IN FAIR USE, a documentarian’s failed effort to clear rights doesn’t inhibit his ability to claim fair use, but those efforts(or lack of) are critically important to his or her defense.
Anyhow, for a film playing to a largely faith-based crowd, I find it amusing that there wasn’t much good faith coming from the filmmakers during production of the thing… and infinitely more amusing that supporters are overlooking the multi-faceted dishonesty of those filmmakers because they like the message. This not only ultimately tarnishes the filmmakers, viewers, and supporters of the film, but also their cause.
In court, as we’ve seen time and again, dishonesty generally does not prevail.