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Stanford Law School’s Fair Use Project: Yoko Ono’s Injunction Against “Expelled” Producers Denied

Publication Date: 
June 02, 2008
Stanford Law School

Update August 21, 2008—A New York Supreme Court has denied EMI Records’ and Capitol Records’ attempt to enjoin the further showing and distribution of Premise Media’s documentary, “Expelled: No Intelligence Allowed.” In a decision issued on August 13, 2008, the Court ruled on an issue of first impression and established that fair use is an available defense to a common law claim of infringement of a copyrighted sound recording. The Court concluded that Premise’s use of a 15-second clip the John Lennon song “Imagine” favors a finding of fair use and therefore EMI and Capitol failed to demonstrate a probablity of success on their infringement claim. Additionally, the Court rejected the conclusion of the Sixth Circuit in Bridgeport Music v. Dimension Films that there is no “de minimis use” when it comes to sound recordings.

The ruling follows a June 2, 2008 decision by the U.S. District Court for the Southern District of New York rejecting a nearly identical claim from Yoko Ono, who alleged that the use of the song clip violated federal copyright and trademark law. EMI Records and Capitol Records filed a claim in state court based on the film’s use of the sound recording, and demanded a nearly identical injunction.

STANFORD, Calif., June 2, 2008—The Fair Use Project of Stanford Law School’s Center for Internet and Society today announced that Yoko Ono’s attempt to enjoin Premise Media’s documentary, “Expelled: No Intelligence Allowed,” has been denied.

The film, released in the United States last month on more than 1000 theater screens nationwide, explores whether proponents of intelligent design are being discriminated against unfairly in academia and beyond. The film uses a 15-second clip from John Lennon’s song “Imagine” to criticize both the song and the anti-religious message it conveys—that the world might be a better place without religion. Ono asked the court to enjoin continued distribution of the film in its present form and to recall and destroy existing copies. The Fair Use Project is representing Premise Media and the other defendants in the case pro bono, along with the national law firm Locke Lord Bissell & Liddell LLP.

In a ruling issued today, Judge Sidney H. Stein of the U.S. District Court Southern District of New York rejected Ono’s request. In holding that Premise Media is likely to prevail under copyright’s fair use doctrine, the court recognized that the film used a limited portion of “Imagine” to criticize the song and the views expressed in it, and to make further social commentary. While the lawsuit is still pending, today’s decision helps pave the way for further distribution of the film in theaters and on DVD.

“This case is not just about fair use, it is about free speech,” explained Anthony Falzone, executive director of the Fair Use Project and lead counsel on the case. “The right to use portions of copyrighted works in order to criticize them and discuss the views they represent lies at the heart of the fair use doctrine because that right is essential to the free flow of ideas, thoughts, and debate.”

Lennon’s widow Yoko Ono and his sons Sean and Julian, along with EMI Blackwood Music, filed suit on April 22, 2008 claiming that Premise Media’s unauthorized use of “Imagine” violates copyright and trademark law. The suit, filed in the U.S. District Court for the Southern District of New York, alleged that Premise Media, C&S Production LP, Premise Media Distribution LP, and Rocky Mountain Pictures misappropriated the composition in violation of the Copyright Act, the Lanham Act, and New York state law.

“We are happy that Judge Stein has removed this legal impediment to our continued distribution of Expelled,” said Logan Craft, chairman and executive producer of Premise Media. “Yoko Ono attempted to stifle free speech. We look forward to the movie’s Canadian release on June 27, our expanded theatrical run in the U.S. this summer, and its DVD release this fall.”

EMI Records Ltd. and Capitol Records LLC filed suit against the same defendants in the Supreme Court of the State of New York, alleging violation of their rights in the sound recording under New York state law. The plaintiffs in that case have likewise asked the state court to enjoin further distribution of the film. That motion is still pending, and a decision is expected in the coming weeks.

Joining Falzone on the case as counsel are Stanford Law colleagues Lawrence Lessig, Julie Ahrens, and Brandy Karl. The Stanford team is joined by Roy Hardin and April Terry, partners at the Dallas office of Locke Lord Bissell & Liddell LLP.

About the Fair Use Project

The Stanford Center for Internet and Society’s Fair Use Project (“the FUP”) was founded in 2006. Its purpose is to provide legal support to a range of projects designed to clarify, and extend, the boundaries of “fair use” in order to enhance creative freedom. The FUP represents filmmakers, musicians, artists, writers, scholars, and other content creators in a range of disputes that raise important questions concerning fair use and the limits of intellectual property rights. In doing so, it relies on a network of talented lawyers within the Center for Internet and Society, as well as attorneys in law firms and public interest organizations that are dedicated to advancing the mission of the FUP.

About Lawrence Lessig

Lawrence Lessig, founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford Law School, is a leading figure in the United States and abroad in intellectual property law. An advocate for the “innovation commons,” a free space where culture, ideas and expression can flourish, Lessig is the founder of Creative Commons [], which lets authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry.

About Anthony Falzone

Anthony Falzone is executive director of Stanford Law School’s Fair Use Project. He is an intellectual property litigator who has represented technology and media clients in a wide array of intellectual property disputes including copyright, trademark, rights of publicity, and patent matters. He is also a lecturer in law at Stanford Law School, teaching Fair Use in Film. Prior to joining Stanford Law School, he was a partner in the San Francisco office of Bingham McCutchen LLP.

About Julie Ahrens

Julie Ahrens is associate director of Stanford Law School’s Fair Use Project, where she represents writers, filmmakers, musicians, and others who rely on fair use in creating their art, documentaries, scholarship, critiques, or comments. Before joining Stanford, Julie was a litigation attorney in the San Francisco office of Kirkland & Ellis LLP.

About Brandy Karl

Brandy Karl joined Stanford Law School in 2007 as a residential fellow at the Center for Internet & Society, where her work includes public interest litigation and other projects related to technology and intellectual property regulation. Prior to joining the Center, Karl practiced copyright and trademark law in Boston as principal of her own firm.

About the Center for Internet and Society

Founded by Stanford Law Professor Lawrence Lessig in 2001, the Center for Internet and Society [] is a public interest technology law and policy program at Stanford Law School which engages students, academics, technologists and policy makers in exploring the interactions between technology, law, and society.

About Stanford Law School

Stanford Law School [] is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, and write books and articles for academic audiences, as well as the popular press. Along with offering traditional law school classes, the school has embraced new subjects and new ways of teaching.

About Premise Media

Premise Media Corporation [] develops, finances, and produces independent films, books, and DVDs for the domestic and international marketplace, producing world-class media that stirs the heart and inspires the mind to truth, purpose, and hope.

About Roy Hardin

Roy Hardin, partner at Locke Lord Bissell & Liddell LLP, has over thirty years of experience trying patent cases in diverse fields. In recent years, he has presented claim interpretation arguments in the Tyler, Marshall and Texarkana divisions of the Eastern District of Texas. Hardin also has utilized alternate dispute resolutions, including mini-trials and arbitration. He has tried bench and jury patent infringement cases across the country and has presented a number of important oral arguments to the Federal Circuit.

About April Terry

April Terry, partner at Locke Lord Bissell & Liddell LLP, focuses on commercial litigation matters, both general and complex. Named a “Texas Rising Star/Super Lawyer” in Texas Monthly magazine, Terry represents major Fortune 500 companies in complex litigation and arbitration matters, including fiduciary relations claims, corporate governance issues, director and officer liability claims, investor claims, indemnity disputes, and disputes regarding failed software implementations.

About Locke Lord Bissell & Liddell LLP

Locke Lord Bissell & Liddell LLP [] is a full-service, national law firm of more than 700 attorneys with offices in Atlanta, Austin, Boston, Chicago, Dallas, Houston, London, Los Angeles, New Orleans, New York, Sacramento and Washington, D.C. With a vast geographic scope, and a national reputation in complex litigation, regulatory and transactional work, Locke Lord Bissell & Liddell is focused on achieving client success as a team. Among LLB&L's many strong practice areas are appellate, capital markets, corporate, class action litigation, employee benefits, energy, environmental, financial services, health care, insurance and reinsurance industries, intellectual property, labor and employment, public law, real estate, REIT, tax and technology.



Amy Poftak
Assistant Director of Communications
Stanford Law School
650 725.7516
(Stanford legal team)

Megan Erhardt
CRC Public Relations
703 683.5004 x136
(Premise Media; Locke Lord legal team)