COPYRIGHT
Film & television

By Tom Frederikse, solicitor, Clintons

An unauthorised use of the song “Imagine” in a recent feature film has been approved by a US court as “Fair Use”. InPremise Media Corp LP (et al) v Yoko Ono Lennon (et al) [2008] No 08 Civ. 3813 (dated 2 June 2008), the US District Court of Southern New York denied the Lennon family’s request for an injunction to stop use of the song in a US film produced by Premise Media. The film, “EXPELLED: No Intelligence Allowed” which concerns the theory of “intelligent design” (aka creationism) plays a short excerpt of the well-known John Lennon track “Imagine” over “Cold War-era images of marching soldiers” and an “image of Stalin”. The film features several other well-known songs and the filmmakers obtained permission to include all tracks, other than “Imagine”. Yoko Ono and Lennon’s children, together with EMI Blackwood Music Inc, sought an injunction to stop distribution of the film and to recall existing copies. The filmmakers defended the copyright infringement allegation by claiming their placement of the song in the film was “Fair Use”, which the Court supported in refusing to grant the injunction. The US “Fair Use” defence is similar to the UK’s “Fair Dealing”, though the US version relies on the statutory “four factors” of: (1) purpose and character of the use; (2) nature of the original work; (3) amount and substantiality of the use; and (4) effect of the use on the value of the original work. In this case, the Court found the use fair in each instance. Like the UK’s “Fair Dealing for purposes of criticism and review”, US Fair Use allows use for “purposes such as criticism, comment [and] news reporting”. The film claims to be “a debate between proponents of intelligent design and the scientific theory of evolution” and appears to support “creationism”. The filmmakers juxtaposed the song’s lyrics “nothing to kill or die for/and no religion too” with material concerning a religion/science conflict and the Court considered this a “transformative” rather than “exploitative” use of the song because it “adds something” through criticism and commentary by using an excerpt containing the critiqued ideas and by pairing the music and lyrics with “images that contrast with the song’s utopian expression” and by placing the excerpt “in the context of a debate regarding the role of religion in public life”. Interestingly, the Court was untroubled by the accepted fact that “it was unnecessary to use [the song] in order to further the purposes” of the film. The Court further noted, crucially, that the amount of use was small (15 seconds of the song, amounting to just 0.27% of a 99-minute film), that only ten words of the lyrics were used and that the use will not “usurp the market for licensing the song” in future. This case highlights a rightsholder’s risk that their song (or book, film, etc) may be used against their express wishes if it can be seen as a “Fair Use”. Rightsholders may be worried to see that use for purposes of “criticism and/or review” in this case extended to a direct attack on the song’s message – not to mention the use of the song in association with a political cause (one type of material with which many artists contractually prohibit association). The essence of copyright is a balance between rights intended to provide an incentive for creativity and the “fair” application of exceptions to copyright which, “if enforced too rigidly, would stifle the very creativity which copyright law is designed to foster”. Reactions to this judgment may be polarised but, in any event, it provides helpful guidance in an area of law with few precedents on which a rightsholder – or a potential licensee – can rely .

The full text of the judgment may be accessed via:http://online.wsj.com/public/resources/documents/expelledsdny.pdf.

Ben Challis adds: whilst it is usually thought that the USA’s ‘fair use’ doctrine has a wider remit than the UK’s ‘fair dealing’ doctrine, the UK courts have reached similar conclusions when looking at the use of a copyrighted work without the permissions of the owner. Section 30(1) of the Copyright Designs & Patents Act 1988 provides that certain acts may be done in relation to a copyrighted work which, notwithstanding the subsistence of copyright, will not be infringing acts.Fair dealing in a work for the purposes of criticism and review falls within 30(1). Court of Appeal’s decision in Time Warner v Channel 4 Television (1994) held that the use of a substantial section of Stanley Kubrick’s film ‘A Clockwork Orange’ did fall within section 30(1) of the Copyright Designs & Patents Act 1988 as legitimate criticism and review. Kubrick had withdrawn his own film from circulation after comments when first released that the film’s themes of youth and gang violence were encouraging copycat actions but the Court felt that a Channel 4 programme which revisited these issues was using material from the Film under the doctrine of fair dealing – even though the clips made up 40%o of the Programme. At the time Lord Puttnam called the much criticised decision a ‘thieves charter’. Section 30(1) provides that fair dealing with a work for the purposes of criticism and review, of that or another work or a performance of a work does not infringe copyright provide it is accompanied by sufficient acknowledgement. In the Pro Sieben case the Court of Appeal allowed use of copyrighted material owned by a German broadcaster in a UK programme about ‘cheque book journalism’ under the provisions of section 30(10 because it was fair dealing for the purposes of criticism and review and fair dealing for the purposes of reporting of current events (s30(2)) This was a liberal and somewhat flexible interpretation of the Act and it has been suggested that the wide interpretation given to ‘criticism and review’ and ‘reporting current events’ goes some way in balancing the public interest against the rights of copyright owners.

Time Warner Entertainment Company LP v Channel Four Television Corporation plc (1994) EMLR 1

Pro Sieben Media AG v Carlton UK Television & Another (1998) FSR 43
Hubbard v Vosper (1972) 2 QB 84
See also EC Directive 2001/29/EC Article 5(3)(d )
And see http://ipkitten.blogspot.com/2008/06/friday-flights-of-fancy.html