Imagining Fair Use

A recent decision by a federal judge in New York is another example of the heavy preference for “transformative” uses in the fair use analysis. The case involves the use of a short clip from John Lennon’s famous song “Imagine” in the anti-evolution movie by Ben Stein called “Expelled.” The movie purports to be a protest against the lack of “intellectual diversity” in American schools; specifically that they do not represent the position known as “intelligent design” in science classes. The clip from “Imagine” is used to try, in a very heavy-handed way, to link science education to anti-religious bias, such as is allegedly found in Lennon’s song.

The judge has rejected a request by the Yoko Ono for a preliminary injunction that would prevent the distribution of the film. Ono claimed that the use of this short clip without her permission was copyright infringement. Given the vastly different political perspectives involved, it is unlike permission would have been forthcoming. But the judge ruled that it was also unlikely that permission was necessary, since there was a strong claim that the use was fair use. Since one of the criteria for getting a preliminary injunction is “likelihood of success on the merits,” Ono’s request was denied because the judge felt it was unlikely she would succeed on the underlaying claim that using the clip was infringement.

Transformative uses, which have recently been the subject of many, if not most, successful assertions of fair use, are those which create a non-competitive product or subject a copyrighted work to criticism, comment or parody. A parody, of course, does not compete in the same market for the original (no one buys a 2Live Crew parody song as a substitute for buying the original by Roy Orbison). Nor does the film Expelled compete in any way with the market for the recordings of John Lennon. And in a traditional transformative use case, the owner of the original may not have much desire to license the use if asked, since the proposed new use often subjects the original to criticism or ridicule (as in this case). Transformative uses are often those uses where there is a strong possibility that the copyright owner in the original work would use his or her rights to suppress the new speech; fair use is the remedy that prevents this censorship by copyright.

For me, this role of fair use in preserving copyright as the “engine of free expression” is especially clear in this case (for an explanation and discussion of this quote from Harper & Row v. Nation Enterprises, see this report from The Free Expression Project). Free speech is always hardest to accept, and most important to remember, when one disagrees violently with what is being said. In this case, I personally have little use for the claims being made in the movie “Expelled;” they strike me as inflammatory and hard to defend with real logic or facts. Nevertheless, the right of the movie producers to make those claims is inviolate, in my opinion, and it is important that they have the tools to make their case in the best way the can. Fair use is an important tool to support creative expression, whether I agree with the content of that expression or not. The arguments being made in the movie may fail, but the judge got this decision exactly right when he ruled that the producers could use the tools they did (including a small part of another’s copyrighted expression) to make those arguments.