Yoko Ono sues “Expelled” filmmakers over Imagine

| 107 Comments

Reuters reports on an interesting development namely that Yoko Ono sues “Expelled” filmmakers over Imagine.

John Lennon’s widow, Yoko Ono, and his sons are suing the filmmakers of “Expelled: No Intelligence Allowed” for using the song “Imagine” in the documentary without permission.

Lennon recorded the song in 1971 and in 2004, Rolling Stone magazine ranked it No. 3, in their 500 Greatest Songs of All Time, according to the lawsuit.

Yoko Ono, son, Sean Ono Lennon, and Julian Lennon, John Lennon’s son from his first marriage, along with privately held publisher EMI Blackwood Music Inc filed suit in U.S. District Court in Manhattan seeking to bar the filmmakers and their distributors from continuing to use “Imagine” in the movie.

They are also seeking unspecified damages.

Is this an issue of freedom of speech?

107 Comments

Is this an issue of freedom of speech?

It sure is! Just like when Metallica sued me for hosting all their songs on Napster. Help, I’m being repressed by Big Metal!

In all fairness, this is an issue of 25 seconds out of the full song.

Twenty-five seconds of a three minute song is almost one sixth.

In all fairness, this is an issue of 25 seconds out of the full song.

which might be fine as a personal assessment, but as a legal one, it’s entirely irrelevant.

Most TV commercials are 30 seconds, and they sure pay for use of songs and music.

Does anyone else think this may affect the payments to church groups for seeing “Expelled?” Are the producers going to have any money for the payments after they lose this lawsuit?

I imagine their “fair use” defence would involve the juxtaposition of images which reflect their view of what life would be like if there was “no religion too”.

However, I do have to wonder how this was at all supportive the issue of what the film was supposed making a case against? After all, wasn’t it supposed to be about the alleged persecution of scientists and academics who had the temerity to espouse the notionally non-religious concept of Intelligent Design? In that context, what sense does the supposed contrast of the alleged “atheistic consequences” of “Darwinism” to the song “Imagine”, either as parody or as criticism?

which might be fine as a personal assessment, but as a legal one, it’s entirely irrelevant.

IANAL. So from a legal perspective, what is the case law on using snippets from songs?

I think the makers of expelled are beginning to have their “great awakening” They better rack up the profits, their legal fees and settlements are going to be staggering. No telling who else will file suit. Of course, I am sure it is just part of their publicity plan.

OT - the Institute for Creation Research had submitted an application to grant Master Degrees in Science Education in Texas. Out Higher education Coordinating Board unanimously rejected the ICR application.

From the Reuter’s report:

The producers cited the fair use doctrine, which allows the use of copyrighted materials for the purposes of commentary and criticism.

“We are disappointed therefore that Yoko Ono and others have decided to challenge our free speech right to comment on the song ‘Imagine’ in our documentary film,” they said in a statement.

Are these people insane? I haven’t seen the film, maybe someone who has can verify that Ben Stein or someone was actually commenting on the song ? Freaking hard to believe. I hope this is their defense in court. Next thing it’s Big Music that’s oppressing ID .…

As I pointed out in a rather lengthy comment on the Gonzalez thread ( http://pandasthumb.org/archives/200[…]mment-152428 ) this is a very settled area of copyright law with established procedures for securing film rights.

Indeed, it’s inconceivable that Rocky Mountain could have sold the film without an “E&O” insurance policy to the distributor guaranteeing that the the film was free and clear of such legal encumberences.

So called “E&O” insurance - Errors and Omissions - is kind of like the intellectual property equivalent of the title insurance you buy to transfer a house. A third party researches all the outstanding property claims, and guarantees that the property is in fact the sellers to lawfully sell.

It’s a standard, contractually required “deliverable” on any significant movie, and a reputable distributor won’t touch a project without it, much like nobody would buy a house without a valid title search.

Reputable distributors are neurotic about this, because one slip can be incredibly expensive for them. A disgruntled copyright holder can block a release or even have a film pulled from theaters, as almost happened on “Batman Returns”, because it featured some uncleared public sculpture in a few scenes.

If Rocky Mountain did get E&O insurance, then there are two possible options. 1) Their E&O company is incompetent (unlikely, it’s a specialty area of the market, with few players, and they’re very good), Or 2) RM played fast and loose with their E&O company to the extent that said company either thought that rights had been secured or they didn’t know the song was in the movie.

( A disclaimer - I’m not a lawyer. I don’t even play one on TV. I’m an engineer, but I spend most of my professional time these days designing custom digital technology for the film and video industry; 80% of my work is in the production and post-production environment )

Here is a resource for documentarians regarding ‘Fair Use…’ http://www.centerforsocialmedia.org[…]se_final.pdf

“One: employing copyrighted material as the object of social, political or cultural critique. Two: quoting copyrighted works of popular culture to illustrate an argument or point.”

Seems to fit… I doubt you have to stay on any overriding argument (ie: discrimination of creationist scientists in Academia). A wiki on fair use seems to have some cases referenced…

My son got a free pass to Expelled last night and gave me a report.

Imagine had the lyrics playing– “Imagine if there was no religion”– over Stalin’s image…something a little different than Lennon was attempting to portray.

Of course the Expelled people have the right to express their opinion contrary to Lennon’s. Can they use Lennon’s lyrics and music to convey the opposite of what he intended? I don’t think so.

Oh and over at Pharyngula, ‘the barefoot bum’ linked to this examination of the issue: http://metamagician3000.blogspot.co[…]e-point.html

MONIQUE BUTANI:

Check out my latest post on Expelled: the numbers are in” Good nite fools! See you around!

I’ve been steering clear of that trollfest; I don’t need plugs for it polluting other threads.

mezzobuff writes…

“One: employing copyrighted material as the object of social, political or cultural critique.

I believe that’s the so called “parody” exemption, which probably doesn’t apply here, or they’d have claimed it right off the bat (as I understand it, “parody” is a very strong fair-use defense, and the only thing that keeps the creators of The Simpsons, South Park, and The Family Guy out of the gulags).

Then again, now that I think about it, given the quality of the Discovery Institutes’ “research” and the quality of the ID arguments, maybe parody is a strong defense after all.

“In all fairness, this is an issue of 25 seconds out of the full song.”… which might be fine as a personal assessment, but as a legal one, it’s entirely irrelevant.

Actually “amount and substantiality of the portion used in relation to the copyrighted work as a whole” is by statute one of the four things that courts are supposed to take into account in determining whether Fair Use applies. I don’t know how relevant that would be though in the context of either this particular situation or case law.

As stevaroni notes though this is a very well settled legal area, so if you could find someone who knows about copyright law you could probably get clear answers and maybe even some specific relevant precedent pretty easily…

Most TV commercials are 30 seconds, and they sure pay for use of songs and music.

And “Imagine” is one of those songs that show up in commercials all the time. I would not be surprised to learn that 25 second uses of “Imagine” constitute a significant portion of Sean Lennon’s income (since, sadly, Into the Sun remains woefully underrated).

Unfortunately for the Premise people whatever defence they decide to go with is going to have the thorn in the side of their original comment that they made before they were sued.

They claim that the reason they’re okay to use it is because the use was momentary, which is an horrible urban legend about copyright violations right up there with “Oh you can download a ROM as long as you delete it within 24 hours.” Such an admission will be able to be used to show that the defendants were ignorant of the law which is absolute hemlock in a court of law. They made no claim as to they were using it to make a point and that can be used against them in court. It will undoubtedly come up in trial.

“Imagine had the lyrics playing– “Imagine if there was no religion”– over Stalin’s image…something a little different than Lennon was attempting to portray.

.…Can they use Lennon’s lyrics and music to convey the opposite of what he intended? I don’t think so.”

Didn’t Stalin want a world without religion?

“Stalin took steps to limit the power of religion in the USSR. Churches and mosques were closed and converted into schools or movie theaters. Religious icons were melted down, and meetings were banned throughout the country. Religion was forced to go underground, in order to hide from the prying eyes of Stalin’s police.” (Source: http://olc.spsd.sk.ca/DE/history20/[…]sec1_07.html)

Before you say Lennon didn’t want to use violence to bring about his fantasy world; how exactly would one get rid of religion in the world if not through violence?

Devil’s Advocate:

Before you say Lennon didn’t want to use violence to bring about his fantasy world; how exactly would one get rid of religion in the world if not through violence?

Ummm… maybe education?

Executive Producers of EXPELLED: No Intelligence Allowed Statement on Lawsuit by Yoko Ono

The fair use doctrine is a well established copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism.

They indeed use the ‘fair use’ defense. However given that it involves a commercial use, the amount used, it seems far from certain that such a defense will work

We are disappointed therefore that Yoko Ono and others have decided to challenge our free speech right to comment on the song Imagine in our documentary film.

Free speech comes at a cost when it comes to copyright.

Based on the fair use doctrine, news commentators and film documentarians regularly use material in the same way we do in EXPELLED: No Intelligence Allowed .

And do they license for the use of copyrighted materials?

Premise Media acknowledges that Ms. Yoko Ono did not license the song for use in the Film. Instead, a very small portion of the song was used under the fair use doctrine.

An interesting admission. No license was granted (was it even asked for?)

Unbiased viewers of the film will see that the Imagine clip was used as part of a social commentary in the exercise of free speech and freedom of inquiry. Unbiased viewers of the film will also understand that the Imagine clip was used to contrast the messages in the Documentary and that the clip was not used as an endorsement within Expelled.

Now all they need to do is find an unbiased jury :-)

Before you say Lennon didn’t want to use violence to bring about his fantasy world; how exactly would one get rid of religion in the world if not through violence?

By writing gushy songs with obnoxiously brain-infecting piano hooks promoting your ideas, which then get repeated worldwide for decades, thus introducing your ideas to millions and millions and associating those ideas with the usually positive emotions the music itself engenders?

Seriously, have you ever listened to the song’s lyrics after the first 25 seconds? It practically addresses your question by itself. The whole thing is about bringing about seemingly unrealistic goals through mere hope and positivity.

PvM: In all fairness, this is an issue of 25 seconds out of the full song.

In the version I saw last Saturday, it was probably around 10 seconds; I checked my watch. I am certain it was under 15. I have no idea what bearing the length of the clip might have no the legal status.

Monique has lost it…

Less than a month ago I conjectured with tongue in cheek that the debacle that was unfolding as Expelled approached release was deliberate, a ploy to get sympathy for the poor persecuted creationists. As the screwups pile higher and higher, I’m afraid I have to abandon my conjecture: They really are that stupid and inept.

mezzobuff said

Monique has lost it…

Monique never had it, for any non-zero value of “it.”

As some people seem to be timing the music extract at 10 seconds and others at 25 seconds, can we be reasonably certain that all the copies of the film are the same?

RBH … you did say they were creationists . …’nuff said. Inept and stupid are synonymous with the appellation “creationist”.

Richard Simons:

As some people seem to be timing the music extract at 10 seconds and others at 25 seconds, can we be reasonably certain that all the copies of the film are the same?

I have timed it. It is officially 15 seconds including crossfades.

From what I’ve seen, they will have a very difficult time arguing fair use. The very same effect would have been created by simply saying what the lyrics of the song are.

Instead Ben Stein says “Dr. Myers is just ripping a page out of John Lennon’s songbook,” then they play the 15 seconds of music. It’s very out of place and in fact by saying ‘John Lennon’s songbook’ it sort of makes this weird argument that John Lennon was like the atheist progenitor or something. Logic is not exactly Stein’s strongsuit.

Premise earlier said they used less than 28 seconds of the clip. The final release had that about 12 seconds, so they either lied or cut the clip back. About 10 minutes were cut from the film shortly before release. But time is not the issue - awards have been made for less than 10 seconds if the song is audible and recognisable.

They have a fair use case based on critique - how good it is is another matter. They will try to show that they used the song to critique the message that atheism would eliminate war. They will dress up the argument so that Ben thinks that John Lennon was necessary for the Soviet Union to be formed. The case will be heard by a judge who will not be swayed by emotional appeals. With any luck he/she will be a Bush appointed right wing conservative liberal ACLU type like Jones

EMI & Ono have a deeply held doctrine “thou shalt not steal music - especially not ours” and deep pockets so some serious cash will change hands - even if it ends up in the lawyer’s pockets

Oh and over at Pharyngula, ‘the barefoot bum’ linked to this examination of the issue

And the author of that piece’s credentials?

I am an Australian writer, philosopher, and critic.

He has some interesting things to say about how he’d like the world to work, but there’s no reason to believe it has anything in common with how US Law says it works, in regard to copyright.

David Stanton ponders.… If they had any scientific theory, or any evidence whatsoever, wouldn’t this have been the perfect time to show it?

That’s been irking me too.

For the last 5 years, and indeed, down at the very core of this very movie, the plaintive wailing from the DI has been that big science is oppressing them, keeping their work out of peer-reviewed journals, preventing them from revealing the irrefutable glory of all their newfound evidence for Intelligent design.

It seems to me that if viewpoint repression is really your problem, and you’re opening a movie in 1000 theaters all over America, the smart thing to do would be to use that 90 minutes to leapfrog the conniving scientific press and get your irrefutable evidence and detailed insights in front of the masses once and for all.

Behe and Dembski front and center! Gentlemen; start your blackboards!

I haven’t actually seen Expelled, but somehow, I’m not hearing a lot of news about DI capitalizing on the golden opportunity to finally achieve exactly what they want - to once and for all pull back the oppressive curtain and get an hour of gleaming ID research past the bulwarks of “big science” and out there into the world for all to see.

Of course now, I suppose, that if you had no evidence, the tacit admission of that would be that once given the chance to make your case, you would have nothing to lead with, and you’d be reduced to weaving conspiracy theories and whining about how everybody oppresses you.

That’s probably not actual evidence that they could find nothing to say, but it does smell pretty fishy.

Point that out the next time some IDiot tells you ID is being repressed.

For years the DI has complained that they’ve been unfairly kept out of the game. So they go rent the field for themselves, they put a hometown audience in the stands and there’s nary a defensive player in sight. What do they do? Do they demonstrate once and for all that they really can play in this league?

No. They spend 90 minutes bitching about how the other team, the one that’s not even on the field right now, treats them badly.

They had their hour upon the stage, the very thing they consistently complain is denied to them. What happened? Turns out they had nothing to say.

They had their hour upon the stage, the very thing they consistently complain is denied to them. What happened? Turns out they had nothing to say.

I suppose its clever beyond measure to miss the point so very carefully but be so delightfully witty while doing so.

But hopefully we all realize that the intent never has been and never will be to do any science or make any sort of scientific argument. The intent has been to create more creationists. The “I’m being persecuted” argument always works, so stick that in. Conspiracy theories always sound plausible to enough people, and how can you prove them wrong? Stick those in too.

In the context of what the creationist are trying to do, it turns out they had a great deal to say. Their goal was to provide yet another grain of dust around which a hailstone can coalesce. The “wedge theory” hasn’t been abandoned, and never will be. Maybe this movie can mobilize a few more key voters in key districts, who can elect a few more creationists to school boards, who can stick a little more preaching into earlier grades, resulting in enough creationist voters to elect folks who will appoint creationist judges.

(Seriously, if Scalia, or Roberts, or Alito had been on the bench instead of Jones, does anyone seriously doubt that DaveScot’s predictions would have been spot on? I agree with him in this respect - I think we’ll have a creationist majority on the Supreme Court for at least another generation, and perhaps two generations if McCain is elected. The task will be to get similar creationists in enough stepping-stone positions to get a solid case through to them while the opportunity is knocking.)

A few congenial court decisions, based on Scalia’s minority opinion in Edwards, and the door is thrown wide open, right down to kindergarten. A generation or two of THAT, and we’d no longer be shackled to this crap about the US Constitution, or separation or church and state. And at THAT point, presumably the creationists could apply the lesson Stalin taught so well: exterminate 10 million dissenters, and by golly, we have heaven on earth. Perfectly legal; voters would fall all over themselves ensuring that “denying God” is a capital crime, especially when they get to define what denial consists of. Which means your creationism isn’t the same flavor as that of the President-For-Life.

But first things first, and the first thing is to mobilize the stupid and ignorant. God, luckily, has always Created these sorts in the overwhelming majority. Just reach out, grab them by their Jesus, and tell them what they want to hear.

Stevaroni and Flint,

I couldn’t agree more with the points you guys make. However, think about how stupid and willfully ignorant a person would have to be to fall for this routine. You would have to be a complete moron to accept the following line of reasoning:

“I’m being repressed, they don’t want me to talk to you.”

“Well, you’re talking to me now, so I guess they weren’t so good at stopping you. What do you have to say that’s so important”?

“I tell you I’m being persecuted. If they even suspected that I was talking to you they would kill us both, just like they killed all those Jews.”

“OK, so now they can’t stop you, go ahead, what do you know that’s so important.”

“Aren’t you listening to me? I told you, they killed all those Jews and now they don’t want me to tell you all the things I know.”

“So, what do you know? Go on, they can’t stop you now.”

“Don’t you get it man, they won’t let me talk about it. I’ve got all this evidence and no one will listen.”

“I’m listening. Go on, show me what you’ve got.”

“I’ve got definate proof that they won’t like it if they find out I’m talking to you. I could spill the beans man, I swear.”

“So, show me the evidence.”

“I can’t man, they’re way too powerful. They won’t let me tell you. I would if I could, but they really wouldn’t like it, so I just can’t. I can get you a copy of some music I downloaded for free though. Would you listen to me if I played it for you? Would that convince you?”

The problem for Premise in any lawsuit is that they have a history of copyright and honesty issues, all of which will come out in a lawsuit.

* Premise lied to several folks in order to secure interviews. * They did seek a license from the band the Killers for one of their songs, but also mislead them about the movie. The Killers then demanded that their music be removed, Premise refused. * They already in a legal battle with XVIVO for copyright issues on their video animations of the inside of a cell. According to Premise, those video segments will not be in the final film and that the ads, premotional DVDs (and presumably the film screenings) were for “educational purposes” only. * They are also accused of lifting clips from a PBS special. * They have a long history with the Discovery Institute, and Dembski has repeatedly made public statements about Premise intentially making their videos similar to invite lawsuits.

All this is going to come out in a trial. Whether the music clip is only twenty-five seconds long, they licensed some clips (also short duration), but not others? They lied to other folks to get licenses. Dishonest witnesses don’t look good on the stand.

From the “OMG I can’t believe even Dembski would say something this stupid” department:

http://www.uncommondescent.com/expe[…]pyrightable/

Is it possible to copyright a song that disavows possessions (copyright being a form of possession)? Once Ono realizes the self-referential incoherence of her suit, I trust she’ll drop it.

Yeah.

Thanks, Boo, for that jaw-dropping Dembskism.

They really are that stupid after all.

Dembski asks…

Is it possible to copyright a song that disavows possessions?

Is it ethical to advocate a science curriculum that contains no actual science?

They did seek a license from the band the Killers for one of their songs, but also mislead them about the movie. The Killers then demanded that their music be removed, Premise refused.

Apparently, the description of the film’s scope used in the Killers’ deal was something to the effect of “a satirical documentary featuring comedian Ben Stein”.

Unfortunately, close enough that the Killers probably don’t have a case.

David Stanton says…

However, think about how stupid and willfully ignorant a person would have to be to fall for this routine.

“I’m being repressed, they don’t want me to talk to you.”…

Oh, I know that, and, as Flint points out, I may be a bit overly flippant at times, but no, I don’t actually expect anyone to believe that claptrap.

But in the big kabuki dance that is the ID argument, conspiracy theory plays front and center, and the best way to diffuse a conspiracy of silence is to yell “Well, just talk already”.

I live in central Texas and I’m around a lot of people who tend to be inclined to creationism for religious reasons, but educated enought to be critical thinkers if you present a clean argument.

The one argument I find that actually half works is asking “Well, where are the emperors clothes?” pointing out that the IDiots keep saying they have all this proof for ID that they’re prevented from talking about, yet they seem to have no problem whatsoever talking about the fact that they can’t talk, and when they finally do talk they never actually answer the question.

Contrast that to science, which answers every question when asked, and shows you the evidence so you can see for yourself down at the local natural history museum.

stevaroni said:

They did seek a license from the band the Killers for one of their songs, but also mislead them about the movie. The Killers then demanded that their music be removed, Premise refused.

Apparently, the description of the film’s scope used in the Killers’ deal was something to the effect of “a satirical documentary featuring comedian Ben Stein”.

Unfortunately, close enough that the Killers probably don’t have a case.

Wait, what? Are you saying that Excreted - uh, I mean Expelled (same meaning, different spelling) - is a satire?

Boo said:

From the “OMG I can’t believe even Dembski would say something this stupid” department:

http://www.uncommondescent.com/expe[…]pyrightable/

Is it possible to copyright a song that disavows possessions (copyright being a form of possession)? Once Ono realizes the self-referential incoherence of her suit, I trust she’ll drop it.

Yeah.

Thanks, Boo. I’m sure we all recognise Billy D’s authority when it comes to copyright issues, don’t we?

I mean, it’s such an obscure thing, and the clue is in the word there (one might almost say “right” there) - copyright is a right enshrined in law. You don’t need to do anything special to own the copyright on something you have created.

Besides, even if Yoko subscribed to the way of life espoused in Imagine back in nineteen-seventy-whenever, there’s nothing that says she has to now. I mean, who here lived through the eighties and came out of them the same person they were in 1979?

Nigel D said:

Besides, even if Yoko subscribed to the way of life espoused in Imagine back in nineteen-seventy-whenever, there’s nothing that says she has to now. I mean, who here lived through the eighties and came out of them the same person they were in 1979?

Ain’t that the truth! :-)

David Stantaon said:

So now enforcing copyright law is an attempt to rewrite the constitution? The judge will rule on whether Yoko will be awarded damages or not. How does that affect the constitution? And when they lose, the lawbreaking retards will just claim persecution anyway.

If they really argue that this constitutes “fair use”, there could be a lot of movies made using Onward Christian Soldiers while showing the planes crashing into the World Trade Center. Do you think the producers of such a movie would not be sued if they failed to obtain permission to use the song if it were copyrighted?

No they would not be sued. Its public domain.

Bobby,

Please reread the last four words of my post.

Now, do you think that the producers of Expectorated, uh I mean Expelled, should be sued or not? Do you think they will win or not? Do you think that Darwin was responsible for Hitler or not? If somone stold a coyyrighted song to vilify Christianity, do you think they should be sued or not?

Perhaps you can explain to us why there is no science in Expectorated (oops there I go again).

Dear Bobby:

I was trained in invertebrate paleobiology and evolutionary ecology in graduate school. On what grounds can you claim that I don’t understand what Steve Gould was saying (Indeed, what are your qualifications on being such a “superb” authority on the words and wisdom of Stephen Jay Gould? I strongly suspect that mine are much better than yours.).

No one I know of who claims to have knowledge of evolutionary biology would refer to it as “Darwinism”. That’s a term used, with ample sarcasm, by your intellectually-challenged fellow creationists. You should speak of “The Modern Synthesis” or contemporary evolutionary theory or “Neo-Darwinian Synthesis” when referring to current evolutionary theory. However, in all likelihood, I strongly suspect that this is a distinction which you, as an intellectually-challenged creationist, refuse to accept. Now run along and learn something about real science before posting more of your inane remarks here at Panda’s Thumb.

Live Long and Prosper (as a DI IDiot Borg drone),

John Kwok

David Stanton said: Perhaps you can explain to us why there is no science in Expectorated (oops there I go again).

David, that is a cheap jibe. The title of the film is Excreted not Expectorated. Oh, curses, now you’ve got me at it!

Bobby…On what grounds can you claim that I don’t understand what Steve Gould was saying

Bobby seems to think that the equivalent of “I know you are but what am I?” counts as reasoned rebuttal.

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This page contains a single entry by PvM published on April 23, 2008 5:18 PM.

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