October 10, 2008

Fair Use Case of John Lennon Song Continues

This update on the issue of fair use of music in documentaries is from former IDA Board President and entertainment attorney Michael C. Donaldson, Esq. (Donaldson & Hart), who served on the Legal Advisory Board for the Documentary Filmmakers' Statement of Best Practices in Fair Use.

Here is the latest news concerning the fair use of 15 seconds of "Imagine" by John Lennon in the documentary film entitled Expelled. Today, October 7, Yoko Ono and EMI are dismissing their law suits against the filmmakers with prejudice. The parties have signed all the necessary papers and they are being submitted to the Judge for signature. This is just a formality. The case is important to documentary filmmakers everywhere because no case in American jurisprudence had ever held that a use of a master recording of a song could be a fair use. In fact, several cases had suggested that a master recording could never be subject to fair use. Just a few years ago, one court wrote that even the briefest needle drop had value.

Yoko Ono filed her law suit in federal court in New York City. The judge carefully analyzed the specific use of the song in this documentary and concluded that it was a fair use for the filmmakers to use the song in this manner. Yoko Ono filed a notice of appeal. Your IDA was prepared to file a friend-of-the-court brief in support of the filmmakers. Today's action by Ono brings the case to an end without the need for any more legal work.

So why did Donaldson and Callif opine that -- in this documentary -- such a use could and would be fair? And why did Media Professionals insure the film? Well, it helped to know that Stanford Fair Use Project would be willing to step up to the plate and provide free legal defense when the inevitable suit was filed. But the fundamental reason that everyone supported the filmmakers in this instance was that this was a clear case of fair use and a perfect demonstration of the first amendment roots of the fair use doctrine.

The documentary Expelled examines the intersection of science and religion in the academic setting. It is narrated by Ben Stein. At one point in the film, a scientist sets forth his view that it would be better if religion were relegated to a week-end activity at best and did not influence our daily lives. Stein then says that the scientist "thinks he is saying something original, but really he is just taking a page out of John Lennon's playbook." Immediately following that line, John Lennon is heard singing "Nothing to fight or die for, and no religion too" as the words scroll across the screen. Black and white stock footage shots play as a backdrop for this sequence.

Interestingly, when the filmmakers first came into our office, the words did not appear on the screen. To bring the use into the fair use safe harbor, we urged the addition of the words on the screen. That way, it would be clear to anyone viewing the film what point was being made by the filmmaker, even if they were not paying close attention to the lyrics as they were being sung.

The clip from the film containing the song and the material leading up to the song will be posted on my website within the week. The address is clearanceandcopyright.com. The 3d edition of Clearance and Copyright mentions the case and has an entire chapter dedicated to fair use so that you can understand the underlying principles that gave us the confidence so start this ball rolling with an opinion letter that using "Imagine" in this manner was a fair use.

Related Stories and Links:
John Lennon Song Snippet Declared Fair Use in 'Expelled'
The IDA Advocacy Section