Yoko Ono Expelled from Court (anti-Fair Use suit)

[Doobie]

Yoko Ono is suing the Expelled filmmakers, accusing them of a copyright violation for the use of 15 seconds of the song Imagine, used for political commentary in the movie. The judge refused Ono's demand for an injunction against the movie. The judge explained, "defendants are likely to prevail on their affirmative defense of fair use." Ono objected, "It is a pity that this decision weakens the rights of all copyright owners."

Talk about a stupid and petty woman, as if brief excerpts of any work for commentary is not already one of the most established aspects of copyright law and practice. Yoko Ono's own fortune is a result of her husband's entire library of music being played, repeatedly, over the radio - what use to be unchallenged Fair Use.

http://news.bbc.co.uk/2/hi/entertainment/7432860.stm

Good luck on the appeal, Ono. :rolleyes:

[cdanddvdpublisher]

i could have sworn that just with music copyright law you're able to use a few seconds - less than 30 - without it being necessary to buy the rights... but then, it's been a while since i took that music industry class

[Mug Funky]

for once i agree with Yoko...

i'd certainly do something about it if i were in a position to... using a song such as that to promote that "intelligent design" bunk.

if you're using a song in a film, you must have permission. it's not like those people don't have a fair amount of financial backing. i think it's insulting that this case was thrown out, when those same courts persue petty cases against downloaders who aren't making a profit (or pushing an agenda).

[edit]

i'm thinking Yoko is doing this for more political reasons than anything else. that song has quite a significant meaning, and is at odds with that film. good luck to her. the filmmakers can afford to distribute their film, so i can't see why they can't just get the rights to that song like every other filmmaker does (on far smaller or nonexistent budgets).

[linx05]

...

i'm thinking Yoko is doing this for more political reasons than anything else. that song has quite a significant meaning, and is at odds with that film. good luck to her. the filmmakers can afford to distribute their film, so i can't see why they can't just get the rights to that song like every other filmmaker does (on far smaller or nonexistent budgets).
I have not seen the 'film' yet but even if it is only 15 seconds long, I agree with the stance she has taken. 'Imagine' is possibly one of the best songs ever written and for it to be used in a shoddy 'film' like that (without permission) is just wrong.

For the first and possibly last time I say, "go Yoko!"

[2Bdecided]

The report doesn't say whether the copyright in question is of the recording of the musical work, or the composition of the musical work. Does the estate of Lennon own both?

With the latter, there are conditions (often waived or sold) where the writer has control over what their work gets associated with. By default, if I write a song, you can't use it to promote something in a film without my permission.

The exact use of the song in the film isn't mentioned in the article, so I don't know if this is what happened here. Unlikely - only a small proportion of legal decisions are "stupid" when you have the full facts (rather than someone's summary of a summary!).

Cheers,
David.

[*.mp4 guy]

This is unquestionably fair use, 15 seconds of a song, used for political commentary. The rest of the details are irrelevant, unless copyright law gets strengthened even further by this case. Which imo, is probably the actual goal.

[Arky]

[EDIT]

Out of respect for the board, I've deleted my post, since Neuron's remarks made me realise that, for probably the first time ever on this board, I posted something which was (unintentionally) potentially inflammatory.

Apologies to all, not least my mod' colleagues here on the board


Regards,

Arky.

[*.mp4 guy]

@Arky

If the song is about what you say it is about, then Yoko needs to take the high road, and instead of furthering Divisive laws, by starting a Divisive Dualistic lawsuit, she should say that she does not believe in that use of the song and leave it at that.

The hypocrisy of suing someone because they are using a song to further a cause you don't beleive in, when the song is aparently about "peace" and "non-division", is frankly rather sickening. The ends don't always justifiy the means.

[Guest]

Guys, knock off the politics and rips on religious groups! Strikes have already been issued and more will follow if it continues.

[Doobie]

It's pretty hypocritical to say you support Fair Use and then come up with BS excuses to reject Fair Use when given a cut-and-dry real-life example. It's also pretty hypocritical to praise a song that promotes "no possessions" and then support someone's effort to raise copyright ownership to an unprecedented level.

Hypocrisy is the clothing of cowards.

[cdanddvdpublisher]

This is unquestionably fair use, 15 seconds of a song, used for political commentary. The rest of the details are irrelevant, unless copyright law gets strengthened even further by this case. Which imo, is probably the actual goal.

I'm all for copyright law being strengthened around the issue; the challenge is that you can't expect the changes one wants to see to change the way things are now.

That said, while I believe that this situation is within Fair Use, I do see that there are problems with the way the rules are laid out.

[Mug Funky]

i think a point that is being missed here is the fact that a movie in wide distribution can be expected to make money. this is not a non-profit film.

commercial use does not equal fair use, and i don't quite understand why the judge in this case has not grasped the fact. perhaps the air is thick with agendas on both sides?

this is an issue that faces pretty much everyone who's been involved in film making, and it's ridiculous that they're crying foul simply because their legal people didn't do their homework and license the song. that's what these people are meant to do.

(i had written a bunch more, but it was tl;dr)

[Ryokurin]

I've seen it and basically what I think she's upset about is how it in a sense took the song out of context in a sense. Yes, it says "Imagine no religion" but it wasn't meant in a way to promote being an atheist, which is kind of what that point in the film implied, and unfortunately is how a lot of people take that part of the song to mean. Its kind of hard to explain without pissing someone off in some way.

[Doobie]

i think a point that is being missed here is the fact that a movie in wide distribution can be expected to make money. this is not a non-profit film.

So, what Mug? Do you think every professional movie reviewer should be put out of business? Quotes and clips of copyrighted material is the bedrock of their business. How about the whole news industry? When was the last time a bad guy consented to have his picture in the for-profit newspaper? Did you know that the radio industry made Yoko Ono rich by playing all her late husband's music. They did so without her permission and without paying one cent for the right to play that music - and they did it for profit, using Fair Use standards of the time!

Did you know that when you see any sort of documentary or news/entertainment report, practically nothing is ever paid for and nothing is licensed?

Whatever you might think, profit has nothing to do with copyright law.

commercial use does not equal fair use, and i don't quite understand why the judge in this case has not grasped the fact. perhaps the air is thick with agendas on both sides?

Sorry, in this case, the raw hypocrisy is all on one side.

this is an issue that faces pretty much everyone who's been involved in film making, and it's ridiculous that they're crying foul simply because their legal people didn't do their homework and license the song. that's what these people are meant to do.

Mug, the movie's legal people apparently did do their legal work, and so the judge ruled in their favor. It's Yoko Ono, so overcome by her own intolerance and bigotry, who apparently didn't do her legal work (rather, she ignored what she knows is the law). The judge explained that her claims are so stupid and ignorant that he's going to rule against her even without a trial! And, when the bigoted Yono appeals, the appeals judges are going to tell her the same thing - while trying to fight back laughter.

Do you think Yoko Ono would have given her consent for the use of a clip in this particular movie? When she went to court, she wasn't asking for financial compensation. She was wanting the song taken out of the movie.

The whole point of Fair Use and Free Speech (The Fair Use Project calls this a case of Free Speech) is to protect the things that people don't like. It does not exist to protect the things people do like. There would be no concept of "fair use" if it were always realistic to get author's permission. Got it?

Now that you understand that this is a simple case of Fair Use, you need to examine the source of all the hypocrisy. You might not have known better, but some of these guys defending Yoko Ono know they're full of BS.

[mpucoder]

Did you know that the radio industry made Yoko Ono rich by playing all her late husband's music. They did so without her permission and without paying one cent for the right to play that music - and they did it for profit, using Fair Use standards of the time!

This is not true, the broadcast stations as well as any legitimate public venue (cover bands, DJ's, jukeboxes) in the United States pay ASCAP (http://www.ascap.com/about/) (American Society of Composers, Authors, and Publishers) and BMI (http://www.bmi.com/about/?link=navbar) (Broadcast Music Inc.) for public performance licensing. This money is distributed to the composers, authors, publishers based on survey information. Joining either organization is voluntary, and conveys implicit permission for public performance by licensees.

Playing a recorded work in its entirety for profit is not fair use.

Other countries have similar clearinghouses, eg in the UK it is PRS (http://www.mcps-prs-alliance.co.uk/Pages/default.aspx) (Performing Right Society). The Beatles music is represented by PRS and ASCAP.

Music which is not represented by a clearinghouse requires seperate licensing, and if a clearinghouse disapproves of a song it does not get aired (eg "They're Coming To Take Me Away" (http://en.wikipedia.org/wiki/They're_Coming_to_Take_Me_Away_Ha-Haaa!) had its certification pulled by BMI, as a result it got pulled from rotation at many stations)

[Doobie]

This is not true, the broadcast stations as well as any legitimate public venue (cover bands, DJ's, jukeboxes) in the United States pay ASCAP (http://www.ascap.com/about/) (American Society of Composers, Authors, and Publishers) and BMI (http://www.bmi.com/about/?link=navbar) (Broadcast Music Inc.) for public performance licensing.

You're half right. But, unless you'd like to directly address the topic rather than just one of several examples, it would be pointless to be sidetracked by parsing the radio station example.

[Gerard V]

This is an astonishing thread to read. Some argue that the ability to quote an excerpt should be curtailed because they do not agree with the politics of the movie in question. Some argue that the potential profit that a movie might generate should require that movie's makers to pay an unspecified (but possibly high) fee. But neither of those matters are about the law. (Everyone supports free speech for those who agree with them, but that is not free speech). The judge made a ruling based on the law - and this site, more than most, has been a stickler for promoting what we can do *legally*, regardless of whether others want us to do that or not. Surely the members of this site, more than most, would promote the idea that the provisions in the law that allow for a brief excerpt to be used without license should apply to everyone regardless of race, politics or creed. If this case goes as Yoko would have it, then every amateur film maker would have to pay licences and receive political endorsement from content owners to make a movie. In other words, such movies would be impossible to make without big money and huge political support.

[setarip_old]

In line with the posting by "mpucoder", I'd suggest that if you've watched the credits at the end of either a television show or a movie, you'll almost always see a listing of a person responsible for "Clearance" - and "Clearance", when regarding music, is a reference to getting approval to use copyrighted music either for a stipulated fee or gratis, if the copyright holder is amenable.

The following are links to two articles regarding just such activity, one in the UK and the other in the US:

http://www.tvshowsondvd.com/news/Doctor-BBC-Statement/8598

http://www.hollywoodreporter.com/hr/search/article_display.jsp?vnu_content_id=1001525959

[Mug Funky]

Did you know that when you see any sort of documentary or news/entertainment report, practically nothing is ever paid for and nothing is licensed?

i see lots of documentaries from the postproduction angle, and permission is pretty much always obtained. even student films have to license copyrighted music, which obviously is a huge strain on the poor guys pockets.

So, what Mug? Do you think every professional movie reviewer should be put out of business? Quotes and clips of copyrighted material is the bedrock of their business. How about the whole news industry? When was the last time a bad guy consented to have his picture in the for-profit newspaper? Did you know that the radio industry made Yoko Ono rich by playing all her late husband's music. They did so without her permission and without paying one cent for the right to play that music - and they did it for profit, using Fair Use standards of the time!

movie reviewers get EPK's direct from the distributors! they obviously have permission to use them. the news industry makes profit through advertising - what they show is considered public interest (which can be argued too for Expelled i suppose, but it's a grey area that needs a line drawn somewhere, because lots of other things could be seen that way).

the bad guy has become a public figure, and so doesn't really own the rights to his own image as snapped by paparazzi. the paparazzi i'm sure are well paid by the newspapers, and AFAIK retain the rights to those pictures.

i agree with you on the free speech thing, but this thread as i understood it was about fair use and what defines it. perhaps i've misunderstood that aspect, and perhaps the USA's copyright laws differ greatly from australia's, but rest assured nothing has passed through my workplace that wasn't obtained with permission - documentary, news, EPK, feature film or otherwise. here it's almost ridiculous that a major film would not have dotted these particular i's and crossed those t's. that said, i really enjoy the idea of guerrilla film making, but perhaps more as a no-budget creative commons thing.

it'll be interesting to see if Yoko is successful in other countries with this.

[cdanddvdpublisher]

it's interesting, isn't it? the way that so many people focus on freedom of speech when they agree...

i have such mixed feelings about copyright laws as they are written, still that doesn't change the fact that the rules are the rules.

[*.mp4 guy]

@Mug Funky

Part of the purpose of the fair use provisions in United States copyright law is to allow for political commentary (satire for example, is specifically exempt). Along with providing a set of general guidelines under which copyrighted works can be referenced safely, in any context (generally exerps of less then 30 seconds are believed to fall into this category). United States copyright law, was and to a certain extent, is still intended to uphold the interests of the general population, particularly political commentary and free speach, while setting a framework within which money can be made off of creative works, without interefering with news, satire and free discussion; IE the right to commentary on these works was originally protected more then the works themselves. Over time, the focus of copyright law has changed, but its original intent is still very much evident in certain areas, fair use in particular.

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. It is based on free speech rights provided by the First Amendment to the United States Constitution. The term "fair use" is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.

United States trademark law also incorporates a "fair use" defense, which also stems from the First Amendment of the U.S. constitution.

Courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

In short. Atleast in the United sates, this is exactly the sort of expression that is supposed to be allowed by fair use, as political commentary is one of the most prized and protected facets of free speach.

[cdanddvdpublisher]

In short. Atleast in the United sates, this is exactly the sort of expression that is supposed to be allowed by fair use, as political commentary is one of the most prized and protected facets of free speach.

Agreed - however, not so sure I'd use Wikipedia as a creditable source...

[mpucoder]

That is all true. But from my experience in broadcast our guidelines were the work itself must be the subject of the review/commentary/satire. This is the distinction between fair use and sampling, which is infringment. In other words if we ran a music review excerpts of the song were allowed, but the music under the sports report had to be cleared (permission obtained and royalties paid) as it was not the subject of the report.
I haven't seen the movie, but I doubt very much that it is a commentary on music.

[Mug Funky]

@ mpucoder:

exactly. at the very least they should have cleared the song with apple records. perhaps they tried and realised how much it would cost, then decided to test the law?

considering it's not the song that's being criticised, and i severely doubt the free speech of the film makers would really have been encroached on if they simply had to clear a song before going ahead and distributing a movie.

i think there's a big difference between, say, using excerpts from W Bush's speeches (or Richard Dawkins) in order to present a rebuttal, parody, or other comment, or using a snip from a well known song to embellish a movie not at all related to the song in question. it's like using the golden arches without permission in a feature film. hell, i've seen people agonising over whether they should remove an AC/DC logo from a kid's t-shirt in a short film.

[Ranguvar]

Evil, evil copyrights. The sooner we get rid of them, the better.

But in a copyright system, I side with Yoko... if that makes any sense.

[*.mp4 guy]

@mpucoder, from what others have said in this thread have said about the content of the song, I think its safe to say that the song was being used in a transformative, rather then a derivative way (using it to make a counterargument to the views actually represented in the song, If I understand correctly). Which is what is actually important as far as copyright law is concerned; Imo the broadcast guidelines are probably purposefully overcautious, in order to make accidental copyright infringement impossible without violating the guidelines (IE, they are there so that tricky questions such as "is this a tranformative or derivative work?" don't need to be considered to stay on the right side of the law)

@Mug Funky
First, it apears that Yoko would have refused to liscense the song to them at all.

Second, copyright was not ever intended to turn intagibles like songs into imaginery property. Copyright is not intended to give you complete control of your work for forever and a day, it is intended to provide economic incentives for the production of creative works without interfereing with free speach (in the U.S.). This use of Yoko's work does not decrease the market value of the song, or indeed, compete with it in any way.

IMO, the song should have passed into the public domain long ago, anyway.


I'm not going to keep reiterating these points. Suffice it to say that I am astonished that so many people here do not respect the value of fair use, and similar legal concepts. This really makes me concerned about the attacks on free speach that have been getting much more numerouse lately.

[cdanddvdpublisher]

IMO, the song should have passed into the public domain long ago, anyway.


Agreed... but then, there are plenty of folks who (obviously) disagree...

[Taktaal]

But in a copyright system, I side with Yoko... if that makes any sense.

If Yoko would have her way, any unfavorable discussion of any media could be so inconvenient that it would be ultimately useless.
Just try criticizing a movie if you aren't allowed to show any images or retell scenes.
Media owners could easily filter all press about their works, granting licenses to those reviews which are positive, and ruthlessly crushing any negative ones with a deluge of lawsuits.

[2Bdecided]

If Yoko would have her way, any unfavorable discussion of any media could be so inconvenient that it would be ultimately useless.
Just try criticizing a movie if you aren't allowed to show any images or retell scenes.
Media owners could easily filter all press about their works, granting licenses to those reviews which are positive, and ruthlessly crushing any negative ones with a deluge of lawsuits.There is a clear distinction between being allowed to include an excerpt from a copyrighted work because you are reviewing it, critiquing it, or parodying it - and not being allowed to include it (without permission) where it's merely vaguely relevant to something else you are reviewing, critiquing, parodying or just discussing.


As for these "copyright is evil" people - you think a plumber deserves to be paid for their work but a song writer does not? I know who I value more, the ones who charge me much less - and for something infinitely more beautiful - than installing a bathroom!

Cheers,
David.

[cdanddvdpublisher]

As for these "copyright is evil" people - you think a plumber deserves to be paid for their work but a song writer does not? I know who I value more, the ones who charge me much less - and for something infinitely more beautiful - than installing a bathroom!

Cheers,
David.

I'm a firm believer that songwriters (and performers) deserve to be paid for their work; I just find that the current system is definitely a bit flawed.

[Ranguvar]

As for these "copyright is evil" people - you think a plumber deserves to be paid for their work but a song writer does not? I know who I value more, the ones who charge me much less - and for something infinitely more beautiful - than installing a bathroom!

Cheers,
David.
Didn't say they didn't deserve to be paid - I said the copyright system is flawed. Intellectual property is flawed. As is putting an artificial limit on the supply of an item that is in infinite supply. It screws with the supply and demand system.

Check out Steal This Film II: http://www.stealthisfilm.com/Part2/index.php

Then get back to me. Sorry, I'm just short on time, and STF2 explains it much better than I ever could. It will open your eyes.

[JohnnyMalaria]

If this case goes as Yoko would have it, then every amateur film maker would have to pay licences and receive political endorsement from content owners to make a movie. In other words, such movies would be impossible to make without big money and huge political support.

"The defendants - Premise Media Corp, of Dallas, Rampant Films of Sherman Oaks, California, and Rocky Mountain Pictures, of Salt Lake City - welcomed the decision." - they don't sound like amateur filmmakers to me.

The film is written (in part) by Ben Stein.
It is a feature length film (90 mins).
It is supported by a flashy (read expensive) website.
It took more than $3,000,000 in its opening weekend

So, it isn't an amateur/student flick - it's a full on Hollywood movie (intelligently?) designed to make money.

Pay the Lennon estate what it is due.

[cdanddvdpublisher]

Didn't say they didn't deserve to be paid - I said the copyright system is flawed. Intellectual property is flawed. As is putting an artificial limit on the supply of an item that is in infinite supply. It screws with the supply and demand system.
.

It's a valid point ;) The copyright system has been flawed for quite a while though and, unfortunately, I don't see it changing any time soon.

[Ranguvar]

It's a valid point ;) The copyright system has been flawed for quite a while though and, unfortunately, I don't see it changing any time soon.
Piracy will lead the way, and in the wake it creates, free open source software and creative commons-style media (a la NiN and Elephant's Dream, especially the former, pay what you believe is right model) will fill the gap... but I'm not allowed to talk about that here ;) Another forum, perhaps.

[minaust]

it's interesting, isn't it? the way that so many people focus on freedom of speech when they agree...

i have such mixed feelings about copyright laws as they are written, still that doesn't change the fact that the rules are the rules.

I think where the problem lies is that isi that the film in question has a political agenda and is a commercial film. Had the film been a comedy or a Vin Diesel action movie, clearance would have obviously been necessary. But it's used in a politacal context, so it's a question for the courts to decide - and apparently decide they did.

It is noteworthy that in "The Big Chill", there's a scene in which one of the characters whistles a couple of bars from "The Raiders March" before undertaking a difficult task, and John Williams gets full credit in the film's closing credits. :confused:

[cdanddvdpublisher]

I think where the problem lies is that isi that the film in question has a political agenda and is a commercial film. Had the film been a comedy or a Vin Diesel action movie, clearance would have obviously been necessary. But it's used in a politacal context, so it's a question for the courts to decide - and apparently decide they did.

It is noteworthy that in "The Big Chill", there's a scene in which one of the characters whistles a couple of bars from "The Raiders March" before undertaking a difficult task, and John Williams gets full credit in the film's closing credits. :confused:

I think that part of the problem (not sure of how big a part, but part) is that different people have different interpretations of fair use and there are only rare cases in which any interpretation is questioned