John Lennon's widow and sons have been rebuffed in their attempt to block the use of part of the song "Imagine" in a film about intelligent design.
Southern District of New York Judge Sidney Stein ruled Monday that the producers of the movie "Expelled: No Intelligence Allowed" were protected by the fair use doctrine in playing a 15-second excerpt from the song.
Stein denied Yoko Ono, Sean Ono Lennon, Julian Lennon and EMI Blackwood Music Inc. the preliminary injunction they sought in Lennon v. Premise Media Corp., 08 Civ. 3813, finding that they were unlikely to prevail on the merits.
Lawyers for the plaintiffs said they would appeal.
"Expelled," which opened on U.S. screens in April and is set for release in Canada later this month and on DVD in October, presents a sympathetic view of intelligent design, the theory that the universe is too complex to be explained by evolution alone.
Narrated by Ben Stein, an attorney, actor and former speech writer for Presidents Nixon and Ford, the 99-minute film purports to examine "the scientific community's academic suppression of those who ask provocative questions about the origin and development of life."
Ono and John Lennon's children have in the past licensed the use of "Imagine" in a number of contexts, including the 1984 film "The Killing Fields" and the opening ceremony of the 2006 Winter Olympics.
In "Expelled," the 15-second excerpt is played during four black-and-white sequences of archival footage showing a group of children in a circle, a young girl spinning and dancing, a military parade and Joseph Stalin waving.
Lyrics from the song -- "Nothing to kill or die for/And no religion too" -- appear on the screen as subtitles.
The film was released in 1,052 theaters on April 18 and the plaintiffs brought suit claiming copyright infringement shortly thereafter.
Judge Stein granted a temporary restraining order on April 30, blocking the defendants from distributing additional copies of the film for theatrical release or producing DVDs pending a May 19 hearing on the preliminary injunction.
Monday, Stein said the plaintiffs could not show they were likely to defeat the fair use defense, which, under 17 U.S.C. §107, protects the use of copyrighted material by the non-owner "for purposes such as criticism, comment, news reporting, teaching ... scholarship or research."
'TRANSFORMATIVE USE'
Under §107, a judge must consider four factors: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount of and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work."
While the defendants conceded that the work was designed to make a profit, Stein found that the film's employment of "Imagine" was a "transformative use" because it incorporates the song "for purposes of criticism and commentary."
The plaintiffs also had argued that the film's producers had obtained permission for all of the other music used in the movie except "Imagine," which they termed an act of bad faith.
But Stein said the 2nd U.S. Circuit Court of Appeals had made clear that failure to ask permission does not, by itself, constitute bad faith.
Turning to the second factor, the nature of the copyrighted work, Stein said the balance weighed somewhat against a finding of fair use "but not strongly," and he noted that the factor is less than significant in cases where there is a finding that the work is transformative.
The judge then found under the third factor that the 15-second portion of "Imagine" the defendants copied was reasonable "both quantitatively and qualitatively" in "light of their purpose" for using it.
Finally, under the fourth factor, Stein said the plaintiffs have shown no evidence "that permitting defendants to use a 15-second portion of the song for a transformative purpose will usurp the market for licensing the song for traditional uses."
Anthony T. Falzone, executive director of the Stanford Law School's Fair Use Project, argued for the defendants.
"There were very important free speech rights at stake and we are very happy the court vindicated them here," Falzone said in an interview.
He also said the judge used the opinion to "address a fairly widely held misconception about fair use, which is that you can only use something that is absolutely necessary to what you want to say. Just because you can say it a different way doesn't mean you have to use it a different way."
Peter S. Shukat of Shukat Arrow Hafer & Weber represented the plaintiffs.
Shukat said Ono "is obviously disappointed with the judge's decision but feels that this matter is important enough that we plan to appeal. It is a pity that this decision weakens the rights of all copyright owners."
According to The Associated Press, at the hearing last month, Falzone said the segment of the song in the film 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."
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."
