Art Space Law: Imagine Fair Use

Gary Schuster, an attorney with Jacobowitz & Gubits, LLP (Walden , New York), has once again offered his time and knowledge-- this time concerning fair use.

Imagine Fair Use
By Gary M. Schuster

A lawsuit involving the rich and famous has just resulted in a court decision that illustrates the copyright concept of fair use and may forever change music licensing for certain films.

The lawsuit involves the song "Imagine" by John Lennon, one of the world’s most well-known and frequently performed songs. The song’s copyright is owned by Lenono Music, the music publishing company formed by John Lennon and Yoko Ono. Lenono Music has the exclusive right to reproduce, sell and distribute the song, and to authorize others to do so. That includes the right to have the music "synchronized in timed-relation" with audiovisual images. In other words, the copyright owner can issue a "synch license" for the music to be used in films, TV programs, advertisements or videos.

A filmmaker recently produced a documentary entitled Expelled: No Intelligence Allowed. The film examines intelligent design, a variation of the theory of creationism. In the film, a scientist argues that greater knowledge of science among the general public would "lead to the erosion of religion." The film’s narrator, Ben Stein, a well-known author and former speech writer for President Nixon, then states that this scientist’s ideas are not original. Instead, he is "merely lifting a page out of John Lennon's song book." The film then plays about 15 seconds of "Imagine" including the words "Nothing to kill or die for/and no religion too." The footage behind the music is a military parade, giving way to a close-up of Joseph Stalin.

The film's producers did not obtain a synch license from Lenono Music, and Lenono sued for copyright infringement. On June 2, 2008, Judge Sidney H. Stein handed a victory to the film producers, agreeing with them that use of the song was permitted as "fair use" and a license was not needed.

Fair use is a very old exception to copyright. Initially it was judge-made, but it is now found in §107 of the Copyright Act. Fair use permits the copying and distribution of copyrighted material, without the owner’s consent, for purposes of criticism, commentary, news reporting, teaching, scholarship or research. Fair use is where copyright law gives way to the First Amendment guarantees of freedom of speech and expression. Naturally there are qualifications and conditions. For example, the fact that teaching and scholarship can be grounds for fair use does not mean that a school to make multiple photocopies of an entire textbook for distribution to its students. The school must purchase the textbooks from the publisher. The producers of Expelled, however, convinced the court that their use of "Imagine" was fair use. At the time of writing this article, Judge Stein's decision had not been published, so we cannot be certain of his reasoning. However, based on what we know of the law and the facts we can make some good guesses.

Broadly speaking there are four tests for fair use, of which three are relevant.

1. The purpose and character of the use, including whether such use is commercial or non-profit/educational. Expelled is a documentary. Of course, it is also a commercial venture. But as films go, it is not like Harry Potter or Indiana Jones. Its primary purpose is to educate, not entertain, even if it does also seek to make a profit. Apart from the nature of the film is the nature of the use of the song. The song was not used as background music to a love scene or action scene. The song was actually part of the argument of the film, and its use was for the purposes of education, commentary or criticism. The court apparently concluded the purpose and character of the film, and of the use of the song, were non-profit/educational rather than commercial.

2. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. As mentioned, the film used approximately 15 seconds of the song. The full song is approximately 3:14, so approximately 8% of the whole was used. Even so, that 8% was a very famous and recognizable portion of the whole. In many cases this could be enough for infringement, but apparently not here, probably because of the overriding First Amendment considerations.

4. The effect of the use on the potential market or value of the original work. In other words, does the allegedly infringing work seek to supplant and divert sales away from the original work; does it suppress the market or value of the original work. It appears the court concluded that 15 seconds of use in this documentary would not harm record sales, or the likelihood of other film producers seeking synch licenses, or reduce the fees paid for such licenses. However, once again, if not for the overriding First Amendment considerations, the court might well have gone the other way.

The fact that a documentary film producer can now use a song, without a license, if the song is part of the argument of the film, is a bit revolutionary. This case may have long-lasting repercussions, even if limited to documentaries. However, it is entirely possible that Lenono Music will appeal this decision. As wealthy and influential as the Lennon family is, the film’s producers had some heavyweight help of their own, namely, Stanford Law School 's Fair Use Project. Their goal 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." In this lawsuit, so far, they have prevailed. Copyright has given way to the First Amendment.

There is another interesting and similar lawsuit underway right now. The author of the Harry Potter books, JK Rowling, has sued the author of a book called the Harry Potter Lexicon. That book is an unofficial reference guide to the wildly successful book series. The Fair Use Project argues that lexicons have been used for centuries to help readers better understand and appreciate other texts, and that writing a lexicon is impossible without substantial copying from the original text. So once again, it is Copyright vs. The First Amendment. The Rowling trial was held in April and we are now waiting for a decision.

The information in this article is for general information purposes only. It is not, nor is it intended to be, legal advice for any particular person or circumstance, or for Internal Revenue Code purposes as described in IRS Circular 230. This article is not a substitute for obtaining legal advice from an attorney based on your particular circumstances.

Links of Interest:
www.jacobowitz.com
www.jacobowitz.com/schuster.htm