The Volokh Conspiracy - Imagine All the People Using This Song for Free:

Well, not all the people, just Ben Stein in his Expelled, and other critical users. Just yesterday, a federal district court held that Stein's use of a couple of lines from John Lennon's Imagine was a fair use, and dissolved a month-old temporary restraining order "enjoining defendants from distributing any additional copies of 'Expelled' for theatrical release, or producing or distributing any DVDs of the movie." Here's the heart of the court's reasoning, which strikes me as quite correct (citations omitted):

A work is transformative if it does not “merely supersede[] the objects of the original creation” but “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Although transformative use “is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Thus, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.” There is a strong presumption that this factor favors a finding of fair use where the allegedly infringing work can be characterized as involving one of the purposes enumerated in 17 U.S.C. § 107: “criticism, comment, news reporting, teaching ..., scholarship, or research.”

Defendants’ use is transformative because the movie incorporates an excerpt of “Imagine” for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views.

The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” In defendants’ view, “Imagine” “is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not new and have been tried before with disastrous results.” The filmmakers “purposefully positioned the clip ... between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior.... mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.”

As many readers know, the copyright fair use analysis includes several different factors and subfactors, but as a general matter transformative uses (even commercially distributed ones) that comment on, criticize, or parody the original are permissible, at least unless they take considerably more of the original work than necessary to make their point. I think that's a sound doctrine (though I think there are good arguments for even more pro-user doctrines), and I think the court applied the doctrine soundly here.

For the related question of whether temporary restraining orders and preliminary injunctions against the distribution of nonliteral copies violate the First Amendment, see Mark Lemley's and my Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1998) (generally arguing they do violate the First Amendment, though suggesting that as a doctrinal matter they might be supportable — if sharply time-limited — under the often-criticized Freedman v. Maryland doctrine). Here the temporary restraining order imposed only a comparatively modest burden on the distribution of constitutionally protected speech, since it didn't block the distribution and display of existing prints. Nonetheless, for the reasons I mentioned in my article, I think even this relatively modest burden should be constitutionally impermissible (partly because I think Freedman is not sound).

UPDATE: Commenter Iolo writes, "'Imagine no possessions' - doesn't that include intellectual ones?" Well, "was[n't] it a millionaire who said imagine no possessions?"

	[Eugene Volokh, June 3, 2008 at 12:54pm] Trackbacks Imagine All the People Using This Song for Free: Well, not all the people, just Ben Stein in his Expelled, and other critical users. Just yesterday, a federal district court held that Stein's use of a couple of lines from John Lennon's Imagine was a fair use, and dissolved a month-old temporary restraining order "enjoining defendants from distributing any additional copies of 'Expelled' for theatrical release, or producing or distributing any DVDs of the movie." Here's the heart of the court's reasoning, which strikes me as quite correct (citations omitted): A work is transformative if it does not “merely supersede[] the objects of the original creation” but “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Although transformative use “is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Thus, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.” There is a strong presumption that this factor favors a finding of fair use where the allegedly infringing work can be characterized as involving one of the purposes enumerated in 17 U.S.C. § 107: “criticism, comment, news reporting, teaching ..., scholarship, or research.” Defendants’ use is transformative because the movie incorporates an excerpt of “Imagine” for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views. The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” In defendants’ view, “Imagine” “is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not new and have been tried before with disastrous results.” The filmmakers “purposefully positioned the clip ... between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior.... mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.” As many readers know, the copyright fair use analysis includes several different factors and subfactors, but as a general matter transformative uses (even commercially distributed ones) that comment on, criticize, or parody the original are permissible, at least unless they take considerably more of the original work than necessary to make their point. I think that's a sound doctrine (though I think there are good arguments for even more pro-user doctrines), and I think the court applied the doctrine soundly here. For the related question of whether temporary restraining orders and preliminary injunctions against the distribution of nonliteral copies violate the First Amendment, see Mark Lemley's and my Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1998) (generally arguing they do violate the First Amendment, though suggesting that as a doctrinal matter they might be supportable — if sharply time-limited — under the often-criticized Freedman v. Maryland doctrine). Here the temporary restraining order imposed only a comparatively modest burden on the distribution of constitutionally protected speech, since it didn't block the distribution and display of existing prints. Nonetheless, for the reasons I mentioned in my article, I think even this relatively modest burden should be constitutionally impermissible (partly because I think Freedman is not sound). UPDATE: Commenter Iolo writes, "'Imagine no possessions' - doesn't that include intellectual ones?" Well, "was[n't] it a millionaire who said imagine no possessions?"