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Yoko Ono/EMI Suit Exposes Fair Use Flaw
Posted by
samzenpus
on Thu Oct 09, 2008 06:57 AM
from the I-hope-someday-you'll-sue-us dept.
from the I-hope-someday-you'll-sue-us dept.
Ian Lamont writes "Yoko Ono and EMI Records have backed down from their suit against the makers of a documentary film who used a 15-second fragment of a John Lennon song — but only after a Stanford Law School group got involved. Even though the use of the clip was clearly Fair Use, the case exposed a huge problem with the doctrine: It's becoming too expensive for people to actually take advantage of what is supposed to be a guaranteed right. Ironically, the song in question was Imagine."
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So sue to recover the losses (Score:5, Insightful)
Re:So sue to recover the losses (Score:5, Insightful)
> Can't the film makers just countersue to get the losses incurred by this lawsuit?
How will you coutersue if you're bankrupted before you can?
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Re:So sue to recover the losses (Score:5, Insightful)
> Can't the film makers just countersue to get the losses incurred by this lawsuit?
How will you coutersue if you're bankrupted before you can?
Getting bankrupted was partly coming from having a crappy film in this case. It currently sits at 8% [rottentomatoes.com] on RottenTomattoes. This is "Expelled: No Intelligence Allowed" we're talking about, the pro Intelligence Design movie. I suspect the suit was as much about trying to not be associated with such drivel as it was about getting cash from the producers. Still, fair use is fair use, and Ms. Ono needed to face up to that reality to begin with. The suit should never have been brought to trial.
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Re: (Score:3, Insightful)
> Still, fair use is fair use, and Ms. Ono needed to face up to that reality to begin with.
I don't see how it is. Fair use is when you cite or refer to something that's relevant to what you're publishing on, not when you co-opt something for a propaganda film.
If you were making a documentary about John Lennon, or about the mindset of the 1970s, or about the structure of pop songs, it would be perfectly "fair" to play a snippet of the song. But that doesn't mean you can play a snippet in any context you
Re:So sue to recover the losses (Score:5, Insightful)
Don't agree with the film all you want, but this is clearly fair use.
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Re:So sue to recover the losses (Score:5, Insightful)
No, fair use was created so that overzealous copyright lawyers wouldn't kill the public's ability to use the art.
There's nothing in fair use clauses that says anything about the use having to be useful or good - whatever that means. You don't get to define that - no one can, or at least is supposed to.
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Re:So sue to recover the losses (Score:5, Insightful)
From the article linked to in the summary:
I haven't seen the movie, but it sounds to me like they were doing exactly what you suggested the purpose of fair use is: playing a short piece of the song for the purpose of criticizing it. The fact that you don't agree with the producer's "propaganda" has no relevance to the issue of whether or not they were exercising fair use.
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Re:So sue to recover the losses (Score:4, Insightful)
One of the reasons the doctrine of fair use was created was to support scholarship. There are other reasons too, i.e.: criticism, news reporting, teaching or research. There's also a rule that is pretty nuanced, and IMHO isn't always being treated consistently by the courts, that goes into whether a use is transformative or not.
You can call the larger work the music was attached to propaganda, instead of news or political speech, if you want. (I can just see the US government issuing a court decision that all publication relating to intelligent design is not newsworthy and is instead all automatically propaganda). If it is propaganda, then using some musical work to create, for just one example, an ironic or sardonic tone in the larger work is transformative of the musical work, so it still passes one of the fair use tests. If the documentary counts as political speech, then fair use rights are broader than for commercial speech, so it would probably pass simply on that grounds instead.
So no, maybe an AC who's started off by simply saying he 'doesn't see how something could be fair use' should just be informed of various ways that it might be, not modded +5. I'm not opposed to him being modded up as interesting, mind you, he raised a genuinely interesting point - you can't automatically use something in just any context you want.
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Re:So sue to recover the losses (Score:4, Insightful)
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Re:So sue to recover the losses (Score:4, Informative)
Another phrase I saw was "intentionally ambiguous". It kind of sounds like it's supposed to be vague and left up to the courts to decide in each case, which doesn't sound like good law to me but then IANAL.
Some laws are written intentionally such that the standards of society can be applied through case law. There are times when congress doesn't intend to write a blanket law expressly forbidding or permitting something, but instead wants to allow for an organic definition of the law to form over time. There are pros and cons to that approach.
A lot of case law on fair use does exist, and based on what I know of it, I don't see how this case was "clearly" fair use as described in the article summary. The courts themselves have noted that each case has to be considered individually - there is no singular guiding principle to define what "fair" means in every context. Judgments in some cases seem to contradict judgments in other cases, although it usually comes down to some minor detail or just a question of degree. (For example, when 2 Live Crew was at one point found guilty of infringing for their use of "Pretty Woman", the problem was just the amount of the song that they used.)
One thing is for sure - the position of the copyright owners doesn't matter at all. The copyright owner doesn't get to decide what's fair use and what isn't. Otherwise the copyright owners would win every single lawsuit, and they don't. The law is what it is; it's a specific exception to copyright law. The only question is how to actually define that exception.
There are four criteria that are specifically mentioned in the law that courts use in deciding these cases, although the wording of the law makes it clear that those are not the *only* criteria to be used. Still, they are always the starting point. Generally, they will try to look at the balance of how the work in question fits in with those criteria. In other words, use of a copyrighted work can be fair use even if it's *not* parody (one of the four criteria), provided it's just a short excerpt and is used for criticism. It's not that all four criteria need to be satisfied for something to be fair use. Any one or all can be, plus more criteria not mentioned in the law specifically, and the courts have to decide all this on a case by case basis.
I would think this would be a tricky case. It's only 15 seconds, and you could argue it's being used for criticism and comment, but on the other hand it is a for-profit work (nothing about it being a documentary changes that) and it doesn't sound like the song had much to do with the theme of the film itself - an argument could be made that using this song in a documentary on creationism would harm the song's reputation and hurt its future commercial prospects. (ie. it'd be hard for an ad agency to use a song in a Nike ad that's closely associated with creationism). All that and more would be considered by the courts.
It's certainly not "clearly" a case of fair use. It may or may not be.
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Re:So sue to recover the losses (Score:5, Insightful)
Except that, too, is very expensive...
(Off topic to the story, but relevant to the thread: After being wrongfully arrested once, and had three extra charges (one of which could not have had anything to do with what I was doing at the time, as it only applied to drivers, when I was a pedestrian) added to encourage me to plead guilty to one of them, I flew across the country and before being rung at 5pm (the court time was 9am the next day) by my lawyer to be told that all charges had been dropped. I asked about suing for costs, stress etc., and was told I wouldn't have a chance.)
On topic to the story:
I think this not only exposes problems with the "fair use" defence, but with the entire US legal system. Exposes problems that anyone who has paid attention would already know about mind you. Court is just too expensive.
Justice is meant to be available to all, without regard to the amount of money a person has. But, no where has a justice system, merely legal systems.
(Off topic again slightly, John Lennon wrote a few songs that seemed to have a distinctly leftist bent, does anyone know if he was actually a socialist or anything similar?)
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Re: (Score:3, Insightful)
Off topic again slightly, John Lennon wrote a few songs that seemed to have a distinctly leftist bent, does anyone know if he was actually a socialist or anything similar?
He definitely had a humanist bent, but these days anyone who cares for other people regardless of cost tends to get branded as a "liberal" by the government. It's more politically correct than calling them ouright communists, which you can tell is the word burning on McCain's lips whenever is he says LIBERAL on camera...
Re:So sue to recover the losses (Score:5, Interesting)
The Decline and Fall of American Conservatism [theobjectivestandard.com]
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Re:So sue to recover the losses (Score:5, Insightful)
I've seen a similar scenario. When I was a neutral witness to a road traffic accident, I was asked to attend court to give evidence. This I did, and I was offered some compensation and expenses for my trouble (though my employer was kind enough to overlook the missed day of work and pay my normal salary anyway, which they were not required to do).
What I found concerning was that the accused, who was found not guilty of the offence, did not seem to be eligible for any compensation for their lost time and the effort they had made in defending themselves. My understanding is that had they had a lawyer, they might have received the costs for that, but there doesn't seem to be any provision at all for looking after the wrongly accused in their own right. As the story suggests, defending yourself can be expensive — and I live in the UK, where we theoretically have "loser pays" as the default position in court cases.
I don't know what you call a system that makes someone attend court twice, gives them stress for more than a year in total before their case is resolved, finds them not guilty... and then says "Oh, well, never mind, you'll get over it". I'm not sure the word "justice" would feature in my description, though.
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Re: (Score:3, Insightful)
they call it a "court of law" not "court of justice".
Re: (Score:3, Insightful)
does anyone know if he was actually a socialist or anything similar?
He was anti-war. In Nixon's US, that made him a communist. No doubt in Soviet Russia, it would've made him Capitalist.
(and goddamnit, can a serious socialist really have a paisley rolls royce?)
Re:So sue to recover the losses (Score:5, Interesting)
The answer is no. In England and Canada, the loser pays the other side's legal fees. In the US, that is not the rule. And, yes it is a serious problem.
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Why can't we sue the lawyers? (Score:5, Insightful)
I think the following provision should be in the law: if a jury decides a lawsuit is frivolous, then the lawyers that started it should pay everything they got plus punitive damages to the part that got sued, where "punitive" means "enough to hurt". No lawyer should be allowed to get *any* profit from a frivolous lawsuit. And lawyers should know enough about the law to realize that they are embarking on a frivolous lawsuit, whose purpose is just to intimidate or send a political message.
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Re:Why can't we sue the lawyers? (Score:5, Insightful)
I think the following provision should be in the law: if a jury decides a lawsuit is frivolous, then the lawyers that started it should pay everything they got plus punitive damages to the part that got sued, where "punitive" means "enough to hurt". No lawyer should be allowed to get *any* profit from a frivolous lawsuit. And lawyers should know enough about the law to realize that they are embarking on a frivolous lawsuit, whose purpose is just to intimidate or send a political message.
And then you have a chilling effect on valid lawsuits that might, potentially, maybe be declared frivolous if the wrong jury or judge get a hold of it. And you'll have lawyers everywhere less willing to work on contingency, everyone will require a retainer.
The overall effect? Poor people with legitimate legal claims get fucked.
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Re: (Score:3, Insightful)
I don't think so. On a spectrum of lawsuits from valid (plaintif clearly harmed and has law on his/her side)-iffy-frivalous, one might only expect that a judge/jury would rule suits frivalous that are on the iffy-frivaloue side of the spectrum. Of course you might once in a blue moon get a valid suit thrown out, just as occasionally people get wrongly convicted, but that's invevitable if you're going to be making judgements - sometimes you'll be wrong and people will suffer as a result... Still better than
Re:Why can't we sue the lawyers? (Score:5, Interesting)
When did you last see a poor person suing someone to intimidate, send a political statement, or to put someone out of business?
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Re:Why can't we sue the lawyers? (Score:4, Insightful)
The easy joke to make is SCO, but I think ACORN and the Jesse Jacksons and Al Sharptons of the world have started off poor and used the court systems, the treat of lawsuits (and the bad publicity that comes with them) and the threat of boycotts to become quite wealthy.
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Re:So sue to recover the losses (Score:5, Insightful)
The "makers of a documentary" here is "Ben Stein" and the "documentary" is "Expelled: No Intelligence Allowed".
I was actually hoping that Yoko and EMI would win this one.
I totally agree. People who disagree with my views don't deserve the same rights as I do.
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Nothing new... (Score:5, Insightful)
Terrible state of affairs.
Re: (Score:3, Informative)
This is exactly what a lawyer would tell you--fair use is a defense and not a right. There's no mention of fair use in the Constitution, but rather the defense evolved in the courts over a number of years and was a part of the 1976 Copyright Act.
With that said, our common sense tells us it's a right. We hear about cases where fair use was successfully argued and we (I think rightly) feel that we can claim similar uses as fair.
The flaw in the system is really that that fair use defense might need to be re-a
I mean ... (Score:4, Insightful)
The irony is in the lyrics (Score:5, Insightful)
And I quote:
Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people
Sharing all the world...
QED
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Imagine (Score:5, Informative)
Re:Imagine (Score:5, Funny)
Hypocrisy only counts if the media calls you on it.
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this is why copyright terms need to be 10 years (Score:5, Insightful)
Re:Not your decision (Score:5, Insightful)
Copyright is enforced by the public. It is entirely up to us how long we choose to enforce copyright terms. I, for one, am all for zero length copyright terms.. but some people think slightly longer terms are acceptable. Only Disney and similar megacorps think the life + 90 year crap is acceptable (until they need another 30 years added on).
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Re:Not your decision (Score:5, Insightful)
Unlike European copyright law, which is premised on creators' rights, US copyright law is premised on public benefit -- encouraging creation of new works as a first and primary goal, accomplished by means of a temporary, government-provided monopoly by which creators can make a return on their work.
Perpetual copyright leads to economic inefficiencies (in which the cost to the public as a whole vastly outweighs tho benefit to the author and inheritors (if you need me to cite an peer-reviewed analysis to this effect, let me know and I'll dig up a few), to older works being lost because nobody has the rights to reproduce them (or enough economic incentive to do that at the price the present rightholder wishes to charge), and to new works which could leverage the public domain (the "creative commons") not being created.
If you want to argue that 10 years is a bad idea, that's an eminently reasonable position to take. Arguing that copyright should be perpetual, on the other hand, goes against everything US copyright law is based on, and favors a position which would be very much to the detriment of the public, including those who create new works.
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Re:Not your decision (Score:5, Insightful)
in 1893 a school teacher made up a ditty (and most likely copied the tune and lyrical idea from other songs from that time period.)
Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.
She died in 1916.
twenty years after "Good morning to you" was first sung a song with the same melody became popular.
Happy Birthday To You
Happy Birthday To You
Happy Birthday Dear _____
Happy Birthday To You
The sister of the deceased sued and took the copyright because the songs were obviously so similar.
My parents sang that song at my first birthday party (Illegaly I may add as it was probably in a public place like a resteraunt) and the copyright will not expire until after I am dead.
The "artist" never saw a dime.
The "artist" only created something vaguely similar.
A pack of lazy useless family members and lawyers have been living off the income for the last hundred years contributing nothing to society while doing so and being nothing but a pain.
That is the copyright system as it stands.
Work for an hour and you can gain the right to charge other people for making certain sounds in public or making certain marks on paper for the rest of your life, then your kids inherite that right and then sell it to some random company and the best thing is that it will never expire since the terms keep getting longer and longer and longer.
copyright is broken.
It should last no longer than is needed to get your book published and on the shelves or your song recorded and into peoples ipods.
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Re: (Score:3, Informative)
The copyright to Happy Birthday is not owned by the original author ..not by the new words author ..but by Warner Music Group
due to expire in 2030 (US) 2016 (Europe) currently estimated to be worth US$5 million
and is a good example of copyright that is largely ignored by the general public ...
She's right (Score:5, Funny)
I hate to admit it, but she's right. Everybody knows that such types of fair-use are what make record sales plummet. Why buy John Lennon's record when you've got a 15-second fragment of one of his song in a documentary that you can just reply as many times as you like?
That's right, you don't, which is why so many baby seal-killing pirates are now resorting to listening to documentary soundtracks just to avoid buying discs just so they can avoid giving $2 of royalties to starving artists like John Lennon. God I hate these bastards.
The film is rubbish (Score:5, Interesting)
If it wern't for Yoko's history, I'd wonder if this was more about stopping that terrible film from being associated with Lennon than any real copyright concern.
Re: (Score:3, Interesting)
The reason science is "elitist" and denies intelligent design as a theory is because IT ISN'T ONE. It is not a valid scientific theory, so why should it be taught along with valid ones? Science is not a democracy; what the majority of people think sounds good doesn't get to be a theory, and wanting something to be true really badly has no impact on reality.
Scientists are more than welcome to have independent thought and scientists change their
Fool as a client? (Score:5, Interesting)
Would it really be unfeasible or inadvisable, in cases as clear-cut as this, to turn up to court yourself, sans lawyer, and say "This clearly falls under fair use. Can I go home now?"
Re:Fool as a client? (Score:4, Informative)
If only. The way it actually works is that long before a court date is set the judge says "send me a brief" and each party has to write up their case. If you hand in a homework assignment the judge won't even read it. If you hand in nothing, the judge will consider it a default and you immediately lose.
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Imagine... (Score:5, Insightful)
Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people
Sharing all the world
Way to bury the needle on the irony meter, Yoko.
Fair Use is not a right (Score:3, Interesting)
'Fair Use' is what's left of the right to copy after most of it has been suspended to create a privilege to benefit publishers (in the belief this ultimately benefits the public).
You have a right to copy anything you create, purchase, or discover. The state has suspended this right apart from those few exceptions it terms 'fair use', but those exceptions only come into effect as defences after you have been prosecuted for copyright infringement, not before. There can be no 'fair use' without infringement.
It would be better to demand the complete restoration of the right to copy, and to abolish copyright, than to quibble about whether certain exceptions should be acknowledged prior to the commencement of any litigation.
Perhaps Forfeiture would be in order (Score:3, Interesting)
That if a copyright holder repeatedly uses legal harassment to prevent obviously legal uses of its copyright, perhaps it should lose that copyright. All you would need is one or two lost copyrights and you would see media company behavior dramatically change.
No such thing (Score:4, Informative)
There is no such thing as a use which is "clearly fair use."
Fair Use is not a right, it's a guiding principle used in courts (it's what is called an "equitable doctrine" and acts as an "affirmative defense" -- "equity" refers to rules which are not law but are designed to overcome unfairness in some applications of the law, and an "affirmative defense" is where you admit to breaking the law but claim that it shouldn't matter because of some extenuating circumstance). Courts weigh several different highly "fuzzy" factors in determining whether Fair Use should apply.
Some people might think this distinction is pedantic, but it's important for the following reason: people in the open-source/media-rights community need to understand that current law is not as much in their column as they'd like. This means two things:
1) You should not assume, just because some use seems fair, that you would win in a copyright infringement case based on Fair Use.
2) If you want to make Fair Use into a well-defined right, you'll need to write to your representatives in Congress.
People who submit summaries on Slashdot which mischaracterize Fair Use do injury to the political goals of the readership.
Not necessarily frivolous (Score:5, Insightful)
Obviously I'll defer to the opinion of a Stanford law professor, but it seems on the face of it not to be a clearly frivolous lawsuit.
Ben Stein, Mark Mathis, and the rest of the lying scumbags (see Expelled Exposed [www.expelledexposed] for proof) who produced this piece of dreck were using the song for a commercial purpose and were not criticizing, commenting, or reporting on it, and their disingenuous pseudo-documentary certainly doesn't qualify as teaching.
Say what you like about Yoko Ono, but wanting to avoid association with this misfire in the culture war is understandable.
Re: (Score:3, Funny)
Re:Use "Fair Use" for P2P hosting? (Score:4, Informative)
That's *exactly* how BitTorrent works. But the doctrine of fair use also implies the purpose for which the parts are used. You can quote parts of a work, for instance, to make a criticism, but not to create a full copy of the original work.
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Re:Conservative Flim == SUE (Score:4, Insightful)
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Re: (Score:3, Insightful)
Would Yoko Ono have sued about this if Michael Moore borrowed that same 15 second clip?
I think not.
And (presuming for a moment that this wasn't a matter of so clearly falling into fair use that suing should never have been contemplated) that's her right. Copyright is as much about keeping control of how your work is used for the duration copyright, as it is about extracting tolls for use. It's perfectly reasonable to use it as tool to ensure your work isn't used in ways you disapprove of (indeed, this is exactly what the GPL uses coopyright to do -- ensure that the software isn't used in ways the origina
Re:Conservative Flim == SUE (Score:5, Informative)
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Re: (Score:3, Insightful)