Update on the Ono Law Suit ...
As you most certainly know, Yoko Ono and her two sons have sued the producers of Expelled! for their use without permission of the song Imagine by John Lennon.
Well, it appears as though a ruling from the court is imminent. AP is lubing the shoots with a retrospective summary of the suit.
Ono is not asking that the film be pulled, but rather, that the song she controls the rights to not be used.
At a hearing in U.S. District Court in Manhattan this week, the filmmakers' lawyer, Anthony T. Falzone, said that if the judge granted Ono's request for an injunction against the film, it would "muzzle" the filmmakers' free-speech rights.Falzone said the segment of the song in the film - "nothing to kill or die for, and no religion too" - was central to the movie because "it represents the most popular and persuasive embodiment of this viewpoint that the world is better off without religion."
The film, he said, is "asking if John Lennon was right and it's concluding he was wrong."
He also said the filmmakers did not believe they needed to ask Ono's permission because they didn't use enough of the song to violate the copyright.
"Why would you ask somebody for permission to criticize their work?" he asked. "It's not likely it's going to be granted."
Ono countered by saying, "One of the most basic rights I control by reviewing and choosing licenses is the right to say 'no.' The filmmakers simply looted me of the ability to do so."
Dorothy M. Weber, a lawyer for Ono, her sons Sean and Julian Lennon, and EMI Blackwood Music Inc., said the defendants obtained permission for the other songs in the movie - a point the judge noted himself.
I have to say, although I am firmly on Yoko's side philosophically, I'm not sure what I think about this particular situation. I have not seen the movie, but it is pretty clear that Expelled criticizes Lennon's perspective, and criticism, parody, etc. seem to be at least somewhat protected. But, I am no thing close to an expert on this stuff, and I await the decision, hoping that somehow Expelled! and its producers get screwed yet free speech is preserved.
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There are two sets of rights here. One is for Lennon the songwriter. There MAY be some fair use rights involved here, though my knowledge of copyright law would say no.
There are another set of rights of Lennon the performer. And here, Yoko Ono has 'em dead to rights.
People conflate the two, but they are separate rights.
Interesting.....
What's most important about the song getting stripped is it's actually very shoddily done criticism. They talk to PZ Myers moments before and then just sort of declare AH HA JUST LIKE JOHN LENNON! then they play the song. I would defend their right if it was an entire movie criticizing John Lennon, but it's just a poorly tossed in junk-joke sort of thing. It sets a bad precedent for something like "Sympathy for the Devil is a great song but we dont have the rights," "OK, let's just have a character say 'Wow Sympathy for the Devil is a bad song' and then we can use it."
Of course, they could have just had Stein deadpan-quoting the lyrics if they wish to criticize them. It isn't necessary to use his actual work.
If they only used a few seconds of the song in a critical context, then it would seem to be a fair use. I doubt that copyright law makes any distinction as whether the actual criticism is full of crap or not.
I don't know squat about copyright law but in this moron's opinion, a film maker has no right to use even a fraction of a second of anyone else's work without permission. As PalMD said, they could just as easily quoted the lyrics.
The purpose of the film is not to criticize the works of John Lennon, so I really don't see how they could argue it's fair critical use. It's freaking commercial use, despite the fact that the movie has apparently tanked.
They could have quoted Lennon, with attribution, and no foul. By using his music without permission, they broke the law.
She should let 'me use the song with the provision that just prior to its inclusion she get's to clarify what she thinks the producers are doing and why she thinks they're less than the high minded moral authorities they evidently think they are, and why they are so wrong about John Lennon, his music and what it stands for. That'd learn 'em.
I also wonder if there's a distinction to be made between the song itself, and Lennon's performance of said song? And I suspect that the movie was a for-profit enterprise, not scholarly criticism, is a valid point.
Yes.
It may be clearer this way. If Tori Amos made a cover of "Imagine", and the film used that, then Tori Amos could have nailed 'em for using her performance without compensating her. The performance rights are the stronger case here.
Off-topic, but Julian Lennon is not Yoko Ono Lennon's son; he is the son of John Lennon by a previous marriage.
If they only used a few seconds of the song in a critical context, then it would seem to be a fair use. I doubt that copyright law makes any distinction as whether the actual criticism is full of crap or not.
Dune: "The purpose of the film is not to criticize the works of John Lennon"
Exactly, the fair use claim they are making only recognizes quotation for the *purpose* of criticism. ie. of Lennon's performance in this case. As others have pointed out, criticism of the lyric or melody can be done by recitation or having someone play a fragment.
I haven't seen the film, but even the criticism claim sounds pretty weak - it seems to me their purpose was to criticize PZ's views as an aetheist, not Lennon's performance. Since this is (I believe) the only reference to Lennon in the film, and there is apparently no critical commentary on Lennon at all, and the film isn't even about music, it boggles my mind that they ever thought it would work.
IMO, they're hosed (IANAL)
I believe Julian was adopted by Yoko
1. It doesn't doesn't matter that Julian Lennon is not Yoko Ono's son, he's still John Lennon's heir. Furthermore, when renewing the copyright for the recording, which was done in 1998 after John Lennon was killed, the copyright holders of record on the actual copyright registration form list all three - Yoko Ono as widow and Sean and Julian Lennon as sons of John Lennon.
2. There are really three cases here. The case of the copyright infringement of the use of the actual recording (EMI Blakwood controls that), the infringement of the use of the lyrics, and the infringement of the use of the music (like, for example, the melody). Since the recording was unaltered, and included a specific performance of John Lennon's, and of course contained both the words and the music, the judge has to find that the use of all three of those things is 'fair' under copyright law. I just don't see it. Maybe - and I still say only maybe - fair use for lyrics, but I can't find anything in law that suggests use of music can be called fair in a movie that is clearly not about John Lennon, or about pop music of the 60s and 70s, or some sort of subject where the use of music in this way would be unavoidable.
And JM, even though YANAL (and neither am I), you are right: The movie does not criticize nor even comment on the music. Furthermore, since the reference to Lennon did not come from the person being interviewed (PZ Myers) but was a scripted reference, it is looking scarily like (scarily? Is that even a word?) the filmmakers did indeed deliberately write that reference in just to create a context to claim Fair Use.
And if that's so, it's a shabby trick. It's making a mockery of what Fair Use laws were really put in the US code to defend. That's them trying to take away MY rights (as a composer), not me trying to take away theirs.
Yoko Ono's lawyer said it very clearly:
"'We are not saying the film should stop being shown," she said. "We are talking about a small segment of the film we are asking be removed because it violates our clients' rights.'"
would defend their right if it was an entire movie criticizing John Lennon, but it's just a poorly tossed in junk-joke sort of thing. It sets a bad precedent for something like "Sympathy for the Devil is a great song but we dont have the rights," "OK, let's just have a character say