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Updating the Latest Star-Studded Fair-Use Flap, Starring Yoko and Ben

Publication Date: 
May 20, 2008
The Wall Street Journal Law Blog
Dan Slater

Anthony Falzone, executive director of the Fair Use Project is quoted in The Wall Street Journal Law Blog about his defense of filmmakers who include a 15 second audio clip of John Lennon's recording of "Imagine" in their film for the purpose of critique:

The decision in the Harry Potter case might well still be a few weeks coming, but in the meantime we’ve got another cool copyright case to keep us busy. The Law Blog just returned from New York State Supreme Court — a/k/a/ New York’s trial court, a/k/a the “Law & Order” court — where we sat in on a preliminary injunction hearing in the case of EMI Records v. Premise Media, the film production company that made “Expelled,” starring Ben Stein.


In the course of ridiculing what they see as an academic world increasingly dominated by secular views, the filmmakers use a 15 second clip of John Lennon’s song “Imagine” (”Nothing to kill or die for/And no religion too”). The purpose of using the clip, according to Premise’s lawyer, Stanford’s Anthony Falzone, who’s also representing the defendant in Harry Potter, is to criticize the song’s “overtly anti-religious message” as “dangerously naive” — therefore, fair use applies. ...


Lawyers from both sides have declined to comment, but Columbia copyright guru Tim Wu told us this: “I don’t think this is a hard case; nor a close case. Playing 15 seconds of a song to criticize it is as fair as fair use gets. With respect to Yoko Ono: if this case isn’t fair use, then copyright law has become censorship law.”


...Judge Lowe asked Falzone why it was necessary to use Lennon’s actual performance of the song, rather than, say, having Stein say the lyrics himself or flashing the lyrics on the screen. To this, Falzone gave what we thought was a compelling and novel reply. Lennon’s performance, said Falzone, triggers a specific emotional response in the viewer’s mind — i.e. “Maybe Lennon’s right; maybe the world would be better off without religion” — and it’s that response that the film, and its use of “Imagine,” seeks to criticize.