June 5, 2008 | By Richard Esguerra

Fair Use Defense Ruled "Likely to Prevail" in "Imagine" Copyright Infringement Suit

This week, the Stanford Center for Internet and Society's Fair Use Project struck a telling blow in the battle to protect fair use. A US District Judge issued an opinion holding that the producers and distributors of the documentary Expelled: No Intelligence Allowed are likely to prevail on their fair use defense in a copyright infringement suit brought by Yoko Ono. As part of the film's commentary on the treatment of "intelligent design" in academia, the filmmakers included a snippet of John Lennon's "Imagine," highlighting the lyrics "Nothing to kill or die for / And no religion too." The filmmakers did not seek a license to use parts of "Imagine" in the film.

This case builds on the Second Circuit's groundbreaking 2006 case, Bill Graham Archives v. Dorling Kindersley Ltd., in which the Second Circuit noted that "courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest." In the current case, a bevy of interesting facts give rise to a good example of the balancing act that informs fair use -- the notorious four factors that are "weighed together, in light of the purposes of copyright." In the opinion, the judge explores reasons that the 15-second sample might not be a fair use, such as the fact that film is a commercial work, and that the "Imagine" excerpt could be qualitatively significant as "the heart" of the copyrighted work. But the judge ultimately finds that the arguments for fair use are likely to prevail because the film uses the "Imagine" sample to engage in dialogue with the song's message -- an act the judge describes as transformative.

The fair use defense protects speech when that speech includes the use of a copyrighted work, behavior which EFF believes to be increasingly valuable in an environment saturated with media and empowered with the tools to cut, comment, and play with media.

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