Court denies injunction against use of Imagine in film advocating for intelligent design

Last week the United States District Court for the Southern District of New York denied the request for a preliminary injunction by Yoko Ono against further showing and distribution of the movie Expelled, which, as I wrote last month, criticizes evolution, promotes the teaching of intelligent design, and in the process uses 15 seconds of John Lennon's song "Imagine."
In a twenty-three page memorandum opinion and order issued today, the Court held that the producers and distributors of Expelled are likely to prevail on their fair use defense and denied Plaintiffs' motion for a preliminary injunction in its entirety. As I wrote, If the filmmakers had tried merely "to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users' message objectionable." The court, apparently, thought similar things (citations and footnotes omitted; hyperlink added):

Defendants’ use is transformative because the movie incorporates an excerpt of Imagine for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” (“Imagine lyrics, Ex. D to Weber Decl.) As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views. The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” In defendants’ view, “Imagine” is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not and have been tried before with disastrous results.” (Sullivan Decl. ¶ 21.) The filmmakers “purposefully positioned the clip . . . between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior. . . . mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.” (Id. ¶ 20.)

Defendants’ use of “Imagine” is similar to the use at issue in a recent decision of the United States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons. There, the visual artist Jeff Koons copied photographer Andrea Blanch’s photograph from a fashion magazine without permission and incorporated a portion of it into one of his paintings. 467 F.3d at 247. . . . As in Blanch, defendants here use a portion of “Imagine” as “fodder” for social commentary, altering it to further their distinct purpose. Just as Koons placed a portion of Blanch’s photograph against a new background, defendants here play the excerpt of the song over carefully selected archival footage that implicitly comments on the song’s lyrics. They also pair the excerpt of the song with the views of contemporary defenders of the theory of evolution and juxtapose it with an interview regarding the importance of transcendental values in public life. Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it. (Sullivan Decl. ¶ 16.) Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. Plaintiffs also contend that defendants’ use of “Imagine” is not transformative because it was unnecessary to use it in order to further the purposes defendants have articulated.

Determining whether a use is transformative, however, does not require courts to
to decide whether it was strictly necessary that it be used. In Blanch, although certainly Koons did not need to use Blanch’s copyrighted photo, as opposed to some other image of a woman’s feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found a transformative use in the defendants’ unauthorized inclusion of several of the plaintiff’s images—principally concert photos—in a coffee-table book about the musical group the Grateful Dead. 448 F.3d at 607. Although the defendants manifestly could have proceeded without the plaintiff’s , which constituted only a small part of the book, this posed no obstacle to a finding of fair use.

As I said, I think the use of "Imagine" by the filmmakers without permission is legitimate fair use. Nonetheless, Lennon, and "Imagine" in particular, are being misrepresented. Lennon's song imagines a world unpolluted by religious sectarianism, not exactly a radical view in light of the issues of the day. But that's not a view many can find tolerable, even in the U.S. of 2008, and they'll resort to misrepresentation to support their intolerance. Today, the Wall Street Journal ran a story with the headline The Case Against John Lennon. The quote that highlights the column?

Nothing to live or die for — what a nightmare.

Mike Thomas points out that the line is "Nothing to kill or die for" and asks:

What is going on here? Why is the WSJ promoting a column with such a provacative title and using a misquote to mislead readers into a negative reaction against John Lennon? The column itself is a mess. It is poorly written, jumbled and fails to adequately explain how John Lennon or his song “Imagine” has anything to do with what the column appears to be about. Here is the pertinent section that mentions Lennon:

"Mr. Sharansky has a new book, titled Defending Identity. It would be equally accurate to call it The Case Against John Lennon. Or, more specifically, the case against 'Imagine,' Lennon's anthem to a world with 'no countries . . . nothing to kill or die for/And no religion too.' For Mr. Sharansky, a nine-year resident of the Perm 35 prison camp, that's a vision that smacks too much of the professed beliefs of the ex-Beatle's near namesake, Vladimir Ilyich.'

What the hell? Does he think he’s being clever or something? Lennon sounds like Lenin. Get it? So obviously they must be related or they must think alike or something right? Nevermind that “Lenin” was actually an alias for Vladimir Illich Ulyanov, while the surname Lennon dates back hundreds of years to old Ireland.

No, they sound alike so there must be a connection. Right? Kind of like how Obama sounds like Osama so they must be related too. Yeah. That’s the level of reasoning that the column sinks to.

Absolutely pathetic.

And of course he never goes back and explains how V.I. Lenin’s brutal and dictatorial ways have any similarity or correlation to Lennon’s ode to world peace. But fortunately for the cretins who run the WSJ editorial pages, John Lennon is dead and can’t defend his classic work against their asinine columnist’s offhanded smear.

Here's Ken Miller, a biologist from my alma mater speaking at Case Western Reserve University, where I now teach, speaking on intellligent design, evolution, and religion:

Artistic intent, money, etc.

What were Cauty and Drummond's intentions in their "art"? Why did they abandon a successful pop music career as "The Justified Ancients of Mu Mu" ('The JAMs'), "The Timelords", "The Kopyright Liberation Front" ('The KLF'), "The Forever Ancients Liberation Loophole ('The FALL') and found the "K Foundation"? At least one point of view is that "[w]hat Cauty and Drummond were primarily concerned with was money: money as art, art as money. The possibility of meaning beyond money. To challenge the power of money. And if none of that makes sense, maybe that was the intention." That hardly seems far-fetched to me. Drummond himself, speaking of his and Cauty's plan to burn a million pounds of cash, stated that "'We had nothing better to do with the money. Even if it's not art, it's the most important statement we can make,' said Drummond. 'We needed to express something about money and we wanted to push it through art.'"

More than one person I respect was horrified at the stunt. Think of the good that money could do in building projects to bring water to villages in Kenya without access to that most basic of human needs?

K Cera Cera may not be about money, but the question of intent certainly does relate to whether that song constitutes art or theft and, more generally, to the point I raised earlier today: are we to ground our determination of whether a work is "transformative" in the "artist's" own expressed purposes? As previously noted on this blog, "[w]hether [Jeff] Koons will be seen in time as a critical commentator in the tradition of the Dadaists and a genuine leader in the controversial tradition of the avant-garde, or merely as a fashionable purveyor of meaninglessness and banality, remains to be seen."

I simply cannot fathom the Second Circuit's reliance in these determinations on the artist's expressed intent.

And yet I feel (and may well be wrong) that Koons' Niagra and the K Foundations K Cera Cera do not constitute copyright infringements. Why? Aye, there's the rub. One point, I suppose, is that neither has any conceivable impact on any commercially valuable primary or derivative markets for the copyrighted work. K Cera Cera has not and will not stop anyone from licensing the rights to cover Q Sera Sera. Pink Martini has done their own "dark" interpretation of the song, and it remains a valuable product for licensing to this day. Moreover, the KLF's K Cera Cera is so obscure and seems intended to express such an abstruse point that I can't imagine it's devalued Que Sera Sera for licensing in a commercially valuable market for music mashups. Similarly, Niagara cannot conceivably have an impact on the value of the commercial photograph it appropriated. But is it all about economics? Surely, U.S. law doesn't give the artist such control over her creation that she can keep it from being used in ways she doesn't like merely because she doesn't like them. The First Amendment seems to preclude such "morala rights." As the Second Circuit stated in Blanch v. Koons, Copyright law must in part protect the ability of authors, artists, and the rest of us to express them or ourselves by reference to the work of others. 467 F.3d at 250. Que Sera Sera is much more than a song. It is a part of our culture and the feelings and thoughts it evokes as part of our culture are far, far larger than anything created by its composers. Why in the world would we be prevented from using it as a symbol to evoke those feelings and thoughts as long as we are not diminishing the incentive of the composers to compose the song in the first place?

So is it all about the money? That would be ironic, given that the KLF and the K Foundation are the genesis of this blog's ongoing discussion. Is it about the artist's intent? I cannot make sense of that. And who, after all, are we protecting?

Artistic intent, art interpretation, and the transformative nature of appropriation art

Are we really going to require an inquiry into an appropriation artist's purposes in determining whether the appropriation is "transformative"? As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,

The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist's own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists' work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.

What was Jackson Pollock's purpose in painting Lavender Mist? Van Gogh's in painting The Irises? Haven't we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007)(emphasis added), the Second Circuit, in holding that Jeff Koons' appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons' use of the photograph was "transformative" precisely on Koons' statements regarding what he intended:

Koons asserts -- and Blanch does not deny -- that his purposes in using Blanch's image are sharply different from Blanch's goals in creating it. Compare Koons Aff. at P4 ("I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.") with Blanch Dep. at 112-113 ("I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs."). The sharply different objectives that Koons had in using, and Blanch had in creating, "Silk Sandals" confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant's purpose in using copyrighted concert poster was "plainly different from the [*253] original purpose for which they were created"); see also 17 U.S.C. § 107(1) (first fair-use factor is the "purpose and character of the use" (emphasis added)).

Koons is, by his own undisputed description, using Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media.Castle Rock Entm't, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as "raw material," Castle Rock Entm't, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see also Bill Graham Archives, 448 F.3d at 609 (use of concert posters "as historical artifacts" in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when "the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting" on the original). His stated objective is thus not to repackage Blanch's "Silk Sandals," but to employ it "'in the creation of new information, new aesthetics, new insights and understandings.'"

The test for whether "Niagara's" use of "Silk Sandals" is "transformative," then, is whether it "merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated); Davis, 246 F.3d at 174 (same). The test almost perfectly describes Koons's adaptation of "Silk Sandals": the use of a fashion photograph created for publication in a glossy American "lifestyles" magazine -- with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects' details and, crucially, their entirely different purpose and meaning -- as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

The implications of allowing creative appropriation art

In Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)(pdf), the Second Circuit did seem to adopt a version of the reasoning in the preceding post: a work that appropriates the heart of another copyrighted work constitutes fair use as long as it (1) is a genuinely creative work and (2) does not exploit a market created by the copyrighted work. As previously noted on this blog, the Second Circuit concluded that Koons' painting, Niagara, passed the "transformative test" “almost perfectly” because Koons changed the original copyrighted picture’s “colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details.” Also, and “crucially,” Koons’s painting had an “entirely different purpose and meaning – as part of a massive painting commissioned for exhibition in a German art-gallery space.” Thus, the court concluded, “[t]he question is whether Koons had a genuine creative rationale for borrowing Blanch’s image, rather than using it merely to get attention or to avoid the drudgery in working up something fresh.” The court, of course, concluded Koons did have such a genuine creative rationale.

Obviously, too, the court had to conclude that Niagara had no impact on the market for the original copyrighted photo Koons had appropriated. Reaching that conclusion in Blanch v. Koons was easy; Koons' painting was directed at a market for fine art that bore little economic relationship to the market at which the original photograph was aimed -- commercial advertising. Nevertheless, it is important to remember that in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the Supreme Court did not actually find that 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman" constituted fair use. Rather, Justice Souter required the trial court on remand to determine whether or not 2 Live Crew's song had an impact on the primary or derivative markets for Roy Orbison's song:

In explaining why the law recognizes no derivative market for critical works, including parody, we have, of course, been speaking of the later work as if it had nothing but a critical aspect (i.e., "parody pure and simple," supra, at 22). But the later work may have a more complex character, with effects not only in the arena of criticism but also in protectable markets for derivative works, too. In that sort of case, the law looks beyond the criticism to the other elements of the work, as it does here. 2 Live Crew's song comprises not only parody but also rap music, and the derivative market for rap music is a proper focus of enquiry, see Harper & Row, 471 U.S., at 568 ; Nimmer 13.05[B]. Evidence of substantial harm to it would weigh against a finding of fair use, because the licensing of derivatives is an important economic incentive to the creation of originals. See 17 U.S.C. 106(2) (copyright owner has rights to derivative works). Of course, the only harm to derivatives that need concern us, as discussed above, is the harm of market substitution. The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market.

Although 2 Live Crew submitted uncontroverted affidavits on the question of market harm to the original, neither they nor Acuff-Rose introduced evidence or affidavits addressing the likely effect of 2 Live Crew's parodic rap song on the market for a non-parody, rap version of "Oh, Pretty Woman." And while Acuff-Rose would have us find evidence of a rap market in the very facts that 2 Live Crew recorded a rap parody of "Oh, Pretty Woman" and another rap group sought a license to record a rap derivative, there was no evidence that a potential rap market was harmed in any way by 2 Live Crew's parody, rap version. The fact that 2 Live Crew's parody sold as part of a collection of rap songs says very little about the parody's effect on a market for a rap version of the original, either of the music alone or of the music with its lyrics. The District Court essentially passed on this issue, observing that Acuff-Rose is free to record "whatever version of the original it desires," 754 F.Supp., at 1158; the Court of Appeals went the other way by erroneous presumption. Contrary to each treatment, it is impossible to deal with the fourth factor except by recognizing that a silent record on an important factor bearing on fair use disentitled the proponent of the defense, 2 Live Crew, to summary judgment. The evidentiary hole will doubtless be plugged on remand.

(citations and footnotes omitted).

In this day and age, a day and age that literally is no more than 2 to 5 years old, the implications of the Second Circuit's decision in Blanch v. Koons are potentially profound and problematic. The technological ease of ease of creating pieces of "appropriation art" and instantly disseminating them worldwide means that we will have an infinite number of creations that beg the question: do they affect the primary or derivative markets of the copyrighted works they appropriate? Could the courts (or any other institution) possibly cope with the burden of making those decisions?