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IP/Entertainment Case Law Updates

Lennon, et al. v. Premise Media Corp., L.P., et al.

Yoko, Sean and Julian Lennon filed suit against the producers of the movie Expelled: No Intelligence Allowed for the film’s use of fifteen seconds of the song Imagine. The district court denied the plaintiffs’ motion for a preliminary injunction, holding that the defendants were likely to prevail on their affirmative defense of fair use. The defendants’ movie – about the debate between the theory of evolution and intelligent design – used an excerpt from Imagine containing the lyrics “Nothing to kill or die for / And no religion too” to exemplify the view that religion should have little role in scientific debate, which the film criticized.

On the first fair use factor – the purpose and character of the use – the defendants admitted that their use of Imagine was for a commercial purpose, but the court agreed with the defendants that it was highly transformative. Rejecting the plaintiffs’ argument that the use was not transformative because the excerpt was played in the film without any alteration, the court held that the selection of the particular portion of the song was made for purposes of social commentary, namely, to criticize the song’s diminution of religion. This selection, and the juxtaposition with video also supporting this criticism, rendered the use transformative.

Although the court held that the second fair use factor – the nature of the copyrighted work – favored against a finding of fair use, because Imagine is a creative work that falls within the “core” of copyright protection, the court explained that this factor carried limited weight due to the transformative nature of the use. On the third fair use factor – the amount and substantiality of the portion used – the court held that only a minimal amount had been used. Moreover, although the portion used may arguably have formed the “heart” of the copyrighted work, the use of an easily recognizable portion of the song furthered the transformative message that the negative views of religion expressed by evolutionists were not new. The third factor thus favored a finding of fair use. Finally, the court held that the fourth fair use factor – the effect on the potential market – “does not weigh strongly, if at all, against fair use” because the film made a transformative use of the song and it thus would not usurp the market for licensing the song for traditional, non-transformative uses.