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

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?

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...

Re:Imagine

[HBI]

Hypocrisy only counts if the media calls you on it.

She's right

[4D6963]

I hate to admit it, but she's right. Everybody knows that such types of fair-use are what make record sales plummet. Why buy John Lennon's record when you've got a 15-second fragment of one of his song in a documentary that you can just reply as many times as you like?

That's right, you don't, which is why so many baby seal-killing pirates are now resorting to listening to documentary soundtracks just to avoid buying discs just so they can avoid giving $2 of royalties to starving artists like John Lennon. God I hate these bastards.

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.

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: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.

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.

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.