Imagine There’s No Fair Use

Over at Ars, I’ve got a story up about a ruling on fair use in the creationist Intelligent Design movie Expelled:

The controversy centers around a segment about an hour into the film. Science advocate PZ Myers argues that greater science literacy would “lead to the erosion of religion,” and expresses the hope that religion would “slowly fade away.” The narrator, Ben Stein, asserts that Myers’ ideas aren’t original. Rather, he is “merely lifting a page out of John Lennon’s songbook.”

The viewer is then treated to a clip from John Lennon’s “Imagine,” with the lyrics “Nothing to kill or die for/And no religion too.” The music is accompanied by black-and-white footage “of a military parade, which gives way to a close up of Joseph Stalin waving.” Next, the film cuts to a guest who argues that there is a connection between “transcendental values” and “what human beings permit themselves to do one to the other.” Evidently, religion is the only thing standing between us and Stalinist dictatorship.

Judge Stein’s task wasn’t to critique the dubious logic of this segment, but to evaluate the narrower question of whether the film’s use of “Imagine” is fair under copyright law. He noted that the film was focused on a subject of public interest, and that the film was commenting on Lennon’s anti-religious message. The excerpting of copyrighted works for purpose of “comment and criticism” is explicitly protected by the Copyright Act, and Judge Stein ruled that this provision applied in this case.

It’s worth keeping in mind that no competent lawyer would have taken Ono’s case if we were talking about a quote from one of Lennon’s books rather than a clip from his song. But there’s no logical difference between the two. The music clip in this case is playing precisely the same role in this movie as a blockquote plays in the average blog post. Moreover, the dozen or so words of the “Imagine” quote is much shorter than most blockquotes. I conclude:

It is unfortunate that Lennon’s heirs sought to use copyright law to squelch criticism of Lennon’s lyrics. No matter how dishonest Stein and company’s arguments may be, they have the right to make them, and copyright must give way to the First Amendment. Ono’s aggressive tactics will give Stein and company an undeserved PR victory, allowing them to play the beleaguered underdogs fighting the “Darwinist” establishment. The way to counter Expelled is with logic and evidence, of which there’s an ample supply. Overzealous application of copyright law is counterproductive.

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