Ben Stein’s “Expelled” film permitted to use clip from Lennon’s “Imagine”

Judge Stein of the U.S. District Court for the Southern District of New York ruled last week that use of portions of the song “Imagine” in the film “EXPELLED: No Intelligence Allowed” were protected as fair use. Plaintiffs Yoko Ono and record label EMI sued Defendants (the producers of the film) for copyright infringement seeking an injunction to stop the use. After hearing oral arguments and viewing the movie, the Court found that the Plaintiffs failed to meet the burden of showing irreparable harm since “on the basis of the current record, defendants are likely to prevail on their affirmative defense of fair use.”

“Expelled”, a full-length movie on intelligent design narrated by Ben Stein uses a 15-second clip of the song with the words “nothing to kill or die for, and no religion too” transposed on the screen over black and white archive sequences (including a military march and a close up of Stalin). Immediately preceding the excerpt several speakers express the hope that science will diminish religion. In a voiceover, Stein notes the speaker “would like you to think he’s being original but he’s merely lifting a page out of John Lennon’s songbook.”

According the one producer, “the film undertakes to inspire viewers to participate in the scientific, political, cultural, and religious debates surrounding [intelligent design].” Defendants obtained permission to include every song in the movie except Imagine. Defendants timed the films release to coincide with state “Academic Freedom” bills (which permit teachers to criticize the theory of evolution.)

The Court first determined that Plaintiffs established a prima facie case of copyright infringement by showing (1) ownership of a valid copyright and (2) unauthorized copying. Accordingly, absent the injunction there is a presumption of irreparable harm. Turning next to Defendants defense of fair use, the Court held that (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 and U.S. Const. art. I, § 8, cl. 8), that “some opportunity for fair use of copyrighted materials [is] necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts. . . ‘.”

Taking the fair use factors into consideration, the Court held that: (1) the use of Imagine is not merely exploitative, and since the movie stimulates debate, the commercial purpose of “Expelled” weighs weakly against fair use (Defendants’ use is transformative and for purposes of criticism and commentary, i.e., “what the filmmakers see as the naïveté of John Lennon’s views [in that] ‘Imagine’ is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present,” thus “it is not necessary that defendants [transform] the music or lyrics of the song”, nor that Defendant’s could have made the film without the clip, moreover, the failure to seek permission did not weigh against fair use (2) the film comments on the song, and does not exploit its creative virtues, (3) “both quantitatively and qualitatively, the portion of ‘Imagine’ that defendants copy is reasonable in light of their purpose for doing so [, and thus] weighs in favor of fair use”, and (4) there is absolutely no evidence that the film’s use will usurp the market for “Imagine.”

Balancing the potential hardships to the parties if an injunction were issued, the evidence favored Defendants, especially since Plaintiffs were not likely to lose any licensing revenue. Unless Yoko and EMI expel this decision on appeal, they will not Win Ben Stein’s Money.

Case is: Lennon v. Premise Media, No. 08-3813