Yoko Ono/EMI Suit Exposes Fair Use Flaw

Ian Lamont writes "Yoko Ono and EMI Records have backed down from their suit against the makers of a documentary film who used a 15-second fragment of a John Lennon song — but only after a Stanford Law School group got involved. Even though the use of the clip was clearly Fair Use, the case exposed a huge problem with the doctrine: It's becoming too expensive for people to actually take advantage of what is supposed to be a guaranteed right. Ironically, the song in question was Imagine."

Comments

So sue to recover the losses

[InvisblePinkUnicorn]

Can't the film makers just countersue to get the losses incurred by this lawsuit? If not, then there's a serious problem with the judicial system.

Re:So sue to recover the losses

[Okind]

> Can't the film makers just countersue to get the losses incurred by this lawsuit?

How will you coutersue if you're bankrupted before you can?

Re:So sue to recover the losses

[apathy maybe]

Except that, too, is very expensive...

(Off topic to the story, but relevant to the thread: After being wrongfully arrested once, and had three extra charges (one of which could not have had anything to do with what I was doing at the time, as it only applied to drivers, when I was a pedestrian) added to encourage me to plead guilty to one of them, I flew across the country and before being rung at 5pm (the court time was 9am the next day) by my lawyer to be told that all charges had been dropped. I asked about suing for costs, stress etc., and was told I wouldn't have a chance.)

On topic to the story:
I think this not only exposes problems with the "fair use" defence, but with the entire US legal system. Exposes problems that anyone who has paid attention would already know about mind you. Court is just too expensive.

Justice is meant to be available to all, without regard to the amount of money a person has. But, no where has a justice system, merely legal systems.

(Off topic again slightly, John Lennon wrote a few songs that seemed to have a distinctly leftist bent, does anyone know if he was actually a socialist or anything similar?)

Re:So sue to recover the losses

[Drakkenmensch]

Off topic again slightly, John Lennon wrote a few songs that seemed to have a distinctly leftist bent, does anyone know if he was actually a socialist or anything similar?

He definitely had a humanist bent, but these days anyone who cares for other people regardless of cost tends to get branded as a "liberal" by the government. It's more politically correct than calling them ouright communists, which you can tell is the word burning on McCain's lips whenever is he says LIBERAL on camera...

Re:So sue to recover the losses

[Anonymous Brave Guy]

I've seen a similar scenario. When I was a neutral witness to a road traffic accident, I was asked to attend court to give evidence. This I did, and I was offered some compensation and expenses for my trouble (though my employer was kind enough to overlook the missed day of work and pay my normal salary anyway, which they were not required to do).

What I found concerning was that the accused, who was found not guilty of the offence, did not seem to be eligible for any compensation for their lost time and the effort they had made in defending themselves. My understanding is that had they had a lawyer, they might have received the costs for that, but there doesn't seem to be any provision at all for looking after the wrongly accused in their own right. As the story suggests, defending yourself can be expensive — and I live in the UK, where we theoretically have "loser pays" as the default position in court cases.

I don't know what you call a system that makes someone attend court twice, gives them stress for more than a year in total before their case is resolved, finds them not guilty... and then says "Oh, well, never mind, you'll get over it". I'm not sure the word "justice" would feature in my description, though.

Re:So sue to recover the losses

[Coryoth]

> Can't the film makers just countersue to get the losses incurred by this lawsuit?

How will you coutersue if you're bankrupted before you can?

Getting bankrupted was partly coming from having a crappy film in this case. It currently sits at 8% on RottenTomattoes. This is "Expelled: No Intelligence Allowed" we're talking about, the pro Intelligence Design movie. I suspect the suit was as much about trying to not be associated with such drivel as it was about getting cash from the producers. Still, fair use is fair use, and Ms. Ono needed to face up to that reality to begin with. The suit should never have been brought to trial.

Re:So sue to recover the losses

[stormguard2099]

The "makers of a documentary" here is "Ben Stein" and the "documentary" is "Expelled: No Intelligence Allowed".

I was actually hoping that Yoko and EMI would win this one.

I totally agree. People who disagree with my views don't deserve the same rights as I do.

Re:So sue to recover the losses

[Anonymous Coward]

> Still, fair use is fair use, and Ms. Ono needed to face up to that reality to begin with.

I don't see how it is. Fair use is when you cite or refer to something that's relevant to what you're publishing on, not when you co-opt something for a propaganda film.

If you were making a documentary about John Lennon, or about the mindset of the 1970s, or about the structure of pop songs, it would be perfectly "fair" to play a snippet of the song. But that doesn't mean you can play a snippet in any context you want.

The doctrine of fair use was created so that overzealous copyright lawyers wouldn't kill scholarship.

Re:So sue to recover the losses

[moderatorrater]

So fair use is only applicable when it's a view you agree with? Or do rights extend to people you don't agree with too? I thought the whole point of defending people found with child pornography and such was that if you don't let the evil scum have a right, you won't have the right either.

Re:So sue to recover the losses

[moderatorrater]

Bullshit. You can copy portions of the work for a scholarly work (which a documentary is, or at least attempting to be) for the intent to criticize it as long as it doesn't take too much of the work or take away from the original works market. So, in this case, it's at least attempting to be a scholarly work that's criticizing 15 seconds of one of the most famous songs from the most famous band in US history. For some reason I don't think that this 15 second clip is going to undermine their attempts to sell the song.

Don't agree with the film all you want, but this is clearly fair use.

Re:So sue to recover the losses

[NeutronCowboy]

No, fair use was created so that overzealous copyright lawyers wouldn't kill the public's ability to use the art.

There's nothing in fair use clauses that says anything about the use having to be useful or good - whatever that means. You don't get to define that - no one can, or at least is supposed to.

Re:So sue to recover the losses

[multisync]

Fair use is when you cite or refer to something that's relevant to what you're publishing on, not when you co-opt something for a propaganda film.

If you were making a documentary about John Lennon, or about the mindset of the 1970s, or about the structure of pop songs, it would be perfectly "fair" to play a snippet of the song. But that doesn't mean you can play a snippet in any context you want.

From the article linked to in the summary:

There should never have been any doubt the filmmakers who were sued here had every right to use a short segment of a song for the purpose of criticizing it and the views it represents.

I haven't seen the movie, but it sounds to me like they were doing exactly what you suggested the purpose of fair use is: playing a short piece of the song for the purpose of criticizing it. The fact that you don't agree with the producer's "propaganda" has no relevance to the issue of whether or not they were exercising fair use.

Re:So sue to recover the losses

[Artifakt]

One of the reasons the doctrine of fair use was created was to support scholarship. There are other reasons too, i.e.: criticism, news reporting, teaching or research. There's also a rule that is pretty nuanced, and IMHO isn't always being treated consistently by the courts, that goes into whether a use is transformative or not.
      You can call the larger work the music was attached to propaganda, instead of news or political speech, if you want. (I can just see the US government issuing a court decision that all publication relating to intelligent design is not newsworthy and is instead all automatically propaganda). If it is propaganda, then using some musical work to create, for just one example, an ironic or sardonic tone in the larger work is transformative of the musical work, so it still passes one of the fair use tests. If the documentary counts as political speech, then fair use rights are broader than for commercial speech, so it would probably pass simply on that grounds instead.
      So no, maybe an AC who's started off by simply saying he 'doesn't see how something could be fair use' should just be informed of various ways that it might be, not modded +5. I'm not opposed to him being modded up as interesting, mind you, he raised a genuinely interesting point - you can't automatically use something in just any context you want.

Nothing new...

[A beautiful mind]

Fair use is a legal defense to be used in court, therefor everyone who wants to avoid defending their case in a court avoids including copyrighted stuff in their works even if it's clearly fair use.

Terrible state of affairs.

I mean ...

[Van Cutter Romney]

Could it be any other song?

this is why copyright terms need to be 10 years

[timmarhy]

why does anyone need the exclusive rights to something for more than 10 years? if you can't make your money on it in 10 years, it's time to stop flogging a dead horse, and if it's still popular it's long since passed into pop culture and should enter the public domain in recognition of all the support it's had...

Why can't we sue the lawyers?

[mangu]

I think the following provision should be in the law: if a jury decides a lawsuit is frivolous, then the lawyers that started it should pay everything they got plus punitive damages to the part that got sued, where "punitive" means "enough to hurt". No lawyer should be allowed to get *any* profit from a frivolous lawsuit. And lawyers should know enough about the law to realize that they are embarking on a frivolous lawsuit, whose purpose is just to intimidate or send a political message.

Re:Why can't we sue the lawyers?

[Bishop Rook]

I think the following provision should be in the law: if a jury decides a lawsuit is frivolous, then the lawyers that started it should pay everything they got plus punitive damages to the part that got sued, where "punitive" means "enough to hurt". No lawyer should be allowed to get *any* profit from a frivolous lawsuit. And lawyers should know enough about the law to realize that they are embarking on a frivolous lawsuit, whose purpose is just to intimidate or send a political message.

And then you have a chilling effect on valid lawsuits that might, potentially, maybe be declared frivolous if the wrong jury or judge get a hold of it. And you'll have lawyers everywhere less willing to work on contingency, everyone will require a retainer.

The overall effect? Poor people with legitimate legal claims get fucked.

Re:Why can't we sue the lawyers?

[Salo2112]

The easy joke to make is SCO, but I think ACORN and the Jesse Jacksons and Al Sharptons of the world have started off poor and used the court systems, the treat of lawsuits (and the bad publicity that comes with them) and the threat of boycotts to become quite wealthy.

Re:Not your decision

[QuantumG]

Copyright is enforced by the public. It is entirely up to us how long we choose to enforce copyright terms. I, for one, am all for zero length copyright terms.. but some people think slightly longer terms are acceptable. Only Disney and similar megacorps think the life + 90 year crap is acceptable (until they need another 30 years added on).

Imagine...

[Ihmhi]

Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people
Sharing all the world

Way to bury the needle on the irony meter, Yoko.

Re:Not your decision

[cduffy]

Just because you don't want others to retain rights doesn't mean that copyright needs to be limited by anybody other than the creator. If they want to give it away, fine. It's not up to you to decide that they've gotten enough out of it and it should be yours for free now. It's perfectly in your power not to use it or pay for it, but people seem to have issues with that as well....

Unlike European copyright law, which is premised on creators' rights, US copyright law is premised on public benefit -- encouraging creation of new works as a first and primary goal, accomplished by means of a temporary, government-provided monopoly by which creators can make a return on their work.

Perpetual copyright leads to economic inefficiencies (in which the cost to the public as a whole vastly outweighs tho benefit to the author and inheritors (if you need me to cite an peer-reviewed analysis to this effect, let me know and I'll dig up a few), to older works being lost because nobody has the rights to reproduce them (or enough economic incentive to do that at the price the present rightholder wishes to charge), and to new works which could leverage the public domain (the "creative commons") not being created.

If you want to argue that 10 years is a bad idea, that's an eminently reasonable position to take. Arguing that copyright should be perpetual, on the other hand, goes against everything US copyright law is based on, and favors a position which would be very much to the detriment of the public, including those who create new works.

Re:Conservative Flim == SUE

[forand]

Glad to see you have your head on straight and are receiving signals from the mothership. How in the world do you justify such a statement? Do you know her personally? Has she expressed her willingness to let other, more left leaning, documentary producers use her dead husbands songs?

Re:Not your decision

[HungryHobo]

in 1893 a school teacher made up a ditty (and most likely copied the tune and lyrical idea from other songs from that time period.)

Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.

She died in 1916.
twenty years after "Good morning to you" was first sung a song with the same melody became popular.

Happy Birthday To You
Happy Birthday To You
Happy Birthday Dear _____
Happy Birthday To You

The sister of the deceased sued and took the copyright because the songs were obviously so similar.

My parents sang that song at my first birthday party (Illegaly I may add as it was probably in a public place like a resteraunt) and the copyright will not expire until after I am dead.

The "artist" never saw a dime.
The "artist" only created something vaguely similar.
A pack of lazy useless family members and lawyers have been living off the income for the last hundred years contributing nothing to society while doing so and being nothing but a pain.

That is the copyright system as it stands.
Work for an hour and you can gain the right to charge other people for making certain sounds in public or making certain marks on paper for the rest of your life, then your kids inherite that right and then sell it to some random company and the best thing is that it will never expire since the terms keep getting longer and longer and longer.

copyright is broken.

It should last no longer than is needed to get your book published and on the shelves or your song recorded and into peoples ipods.

The irony is in the lyrics

[RobBebop]

And I quote:

Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people
Sharing all the world...

QED

Not necessarily frivolous

[Patrick May]

The 1976 Copyright Act (quoted on Wikipedia) says:

Notwithstanding the provisions of sections 17 U.S.C. Â 106 and 17 U.S.C. Â 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

1. the nature of the copyrighted work;
2. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
3. the effect of the use upon the potential market for or value of the copyrighted work.

Obviously I'll defer to the opinion of a Stanford law professor, but it seems on the face of it not to be a clearly frivolous lawsuit.

Ben Stein, Mark Mathis, and the rest of the lying scumbags (see Expelled Exposed for proof) who produced this piece of dreck were using the song for a commercial purpose and were not criticizing, commenting, or reporting on it, and their disingenuous pseudo-documentary certainly doesn't qualify as teaching.

Say what you like about Yoko Ono, but wanting to avoid association with this misfire in the culture war is understandable.