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The Center for Internet and Society at Stanford Law School reports that a New York State court has refused to stop the distribution of the film Expelled: No Intelligence Allowed, holding that the movie’s use of a clip from a John Lennon recording is not likely to violate copyrights held by EMI Records and Capitol Records. The movie uses a 15 second clip of John Lennon’s "Imagine" in juxtaposition with views about religion and science. In refusing to stop the distribution of the movie, the court held that the use was probably fair. This decision comes two months after a federal district court in New York held that use of the underlying lyrics in the same song was also likely to be fair use. As the Stanford report observes, the state court decision is significant for two reasons: first, it establishes for the first time that fair use is applicable under NY State’s common law to copyrights in sound recordings; second, it calls into question the Sixth Circuit Court of Appeals' holding in another famous case, Bridgeport Music v. Dimension Films, that sampling even 2 seconds of a sound recording was infringement.
By way of background, there are two kinds of copyrights in music: one in the musical composition (the song and lyrics as they are written), and the other in the recording of the song (as it is performed). The former belongs to the songwriter and the latter usually to the record company. Whereas copyright in music has been recognized for a long time, federal law recognized copyright in sound recordings only in 1972. Recordings made before that time, such as Lennon’s Imagine recording, are subject to common law protection in the states until 2067. The exact nature of the rights provided by common law is unclear.
For instance, as the court observed in this case, New York common law did not have an established fair use defense for sound recordings. Applying the doctrine for the first time in this case the court held that the movie’s use of the "Imagine" recording is transformative. The recording is used at the end of a series of comments that express the view that religion on the one hand and peace and science on the other are essentially antagonistic. At this point, Ben Stein, the narrator, comments that these commentators are merely lifting a page out of John Lennon’s songbook. Then the 15 second clip with the words “Nothing to kill of die for, And no religion too” plays. The court observed that this “may be viewed as a criticism of an anti-religious message represented in the sound recording and in general”.
The court also rejected the Sixth Circuit Court of Appeals' reasoning in the Bridgeport case that any borrowing from a sound recording, no matter how insignificant, is infringement. In that case NWA had used 2 seconds from the recording “Get Off Your Ass and Jam” in its recording “100 miles and runnin”. The Sixth Circuit’s decision has, in a large measure, contributed to the uncertainty and high cost surrounding the sampling of sound recordings. I hope that the New York court’s decision influences other federal courts that might be called upon to decide the sampling question.
Another concern raised by the Plaintiffs in this suit was that use of "Imagine" in a film supporting creationism would cause reputational harm to John Lennon. While the concern is understandable, it may be remedied through proper credits in the film. Besides, most criticisms of copyrighted works are likely to cause some harm to reputation. For instance, Thomas Forsythe’s “Food Chain Barbie” photos, depicting naked Barbie dolls in various kitchen appliances, might have harmed the reputation of the Barbie doll image. Forsythe argued that these depictions critiqued the objectification of women and the impossible beauty myth that Barbie doll perpetuates. The Ninth Circuit Court of Appeals held that the photos were fair use and as such protected free speech. Reputational harm was insufficient to stifle criticism in the Barbie doll case and should be so in this case too.