Stanford Law School’s Fair Use Project to Represent Filmmakers in Lawsuit

The Fair Use Project of Stanford Law School's Center for Internet and Society today announced that it is signing on to defend Premise Media's right to use a clip of John Lennon's song "Imagine" in its documentary, "Expelled: No Intelligence Allowed," [ http://www.expelledthemovie.com/ ] for the purposes of commentary and criticism.

The film, released in the United States on April 18, 2008, is about alleged discrimination against people who support alternative theories of evolution such as intelligent design. The song is played for roughly 15 seconds to illustrate and criticize the ideas suggested in it — that the world might be a better place without religion.

Lennon's widow Yoko Ono Lennon and sons Sean and Julian, along with EMI Blackwood Music, filed suit on April 22, 2008 claiming that Premise Media's unauthorized use of "Imagine" violates copyright and trademark law. The suit, filed in the U.S. District Court for the Southern District of New York, alleges that Premise Media, C&S Production LP, Premise Media Distribution LP, and Rocky Mountain Pictures misappropriated the composition in violation of the Copyright Act, the Lanham Act, and New York state law. On the same date, EMI Records Ltd. and Capitol Records LLC filed suit against the same defendants in the Supreme Court of the State of New York, alleging violation of their rights in the sound recording under New York state law.

Premise Media contends it has the right to use the song under the fair use doctrine, which among other things permits the use of copyrighted material for the purpose of comment, criticism, and discussion.

"The right to quote from copyrighted works in order to criticize them and discuss the views they may represent lies at the heart of the fair use doctrine," said Anthony Falzone, executive director of the Fair Use Project. "These rights are under attack here, and we plan to defend them."

Falzone will serve as counsel on the case along with Stanford Law colleagues Julie A. Ahrens and Brandy Karl. The Stanford team will be joined by Roy Hardin and April Terry, partners at the Dallas office of Locke Lord Bissell & Liddell LLP.

The producers of "Expelled" spent two years interviewing scores of scientists, doctors, philosophers, and public leaders, including University of Minnesota biology professor P.Z. Myers, who does not support alternative theories of evolution. The clip of "Imagine," which is audible for approximately 15 seconds, is used in a segment of the documentary in which the film's narrator and author Ben Stein comments on statements made by Myers and others about the place of religion. In the documentary Stein says: "Dr. Myers would like you to think that he's being original but he's merely lifting a page out of John Lennon's songbook." This is followed by an audio clip of Lennon's song "Imagine," specifically, the lyrics "Nothing to kill or die for, And no religion too."

"We included the 'Imagine' clip not only to illuminate Ben Stein's commentary but to criticize the ideas expressed in the song," says Logan Craft, chairman and executive producer of Premise Media.

"Yoko Ono and the other plaintiffs are trying to redefine the Constitution and the free speech protection it affords," Craft continued. "Our movie is about freedom — the freedom to discuss alternative views of how life began on our planet, the freedom to ask reasonable questions about the adequacy of Darwin's theory, and the freedom to challenge an entrenched establishment. Now we find that we also have to fight for our free speech rights."

The plaintiffs in both cases have filed motions asking the court to issue a nationwide injunction against showing the film in its present form. These motions are likely to be heard in the next few weeks.