Yoko Ono/EMI Suit Exposes Fair Use Flaw 409
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."
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?
Nothing new... (Score:5, Insightful)
Terrible state of affairs.
I mean ... (Score:4, Insightful)
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?)
this is why copyright terms need to be 10 years (Score:5, Insightful)
Re:So sue to recover the losses (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...
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.
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).
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.
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.
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.
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.
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.
Re:Conservative Flim == SUE (Score:4, Insightful)
Re:So sue to recover the losses (Score:2, Insightful)
Find a lawyer who is confident enough that he will win the suit, and have that lawyer will charge a percentage. Seek damages in excess of fee.
Re:Conservative Flim == SUE (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 original author disapproves of: as closed source software).
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.
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.
Re:So sue to recover the losses (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:0, Insightful)
Re:Why can't we sue the lawyers? (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 not having a legal system in the first place, or having one where money always wins (big company sues joe six pack and wins not because of the law being on his side, but rather because of the company's better monetary ability to sustain the lawsuit).
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
Re:Conservative Flim == SUE (Score:3, Insightful)
Re:So sue to recover the losses (Score:1, Insightful)
Re:So sue to recover the losses (Score:3, Insightful)
they call it a "court of law" not "court of justice".
Re:So sue to recover the losses (Score:2, Insightful)
Have you ever studied history? Anywhere?
Just like prostitution is the oldest profession, people with piles of money usually get their way.
Not a fair use issue (Score:2, Insightful)
Re:So sue to recover the losses (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 want.
The doctrine of fair use was created so that overzealous copyright lawyers wouldn't kill scholarship.
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.
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:Not your decision (Score:3, Insightful)
You're looking at this through the European perspective -- as if the creator's monopoly on their work is a natural right.
Look at it again, as if the natural order of things in for information to be usable without restriction, and copyright is an artificial monopoly created for the sole purpose of benefiting the greater good of the public as a whole.
To be sure, things which are copyrighted may have value to the eventual rightsholder 90 years later -- but if you calculate present value at the time of creation (if you've never taken an accounting class, this determines the amount which would need to be invested, at current interest rates, to yield the same eventual income as the extended monopoly period would grant; this sum effectively represents the amount of economic motivation granted to an author to create their work), the amount of value which the creator receives at the time of creation based on this extended grant of exclusive rights is absolutely minimal. On the other hand, the costs levied on the rest of the economy -- even excluding the unknowns of derivative works which aren't created, public-benefit performances which don't occur, and enhanced breadth of society's culture as a whole based on expanded exposure to knowledge -- are considerable indeed.
See this amicus brief to the Supreme Court challenge of the DMCA [brookings.edu], An Economic Analysis of Copyright Law (Landes and Posner) [jstor.org], Forever Minus A Day? Some Theory And Empirics of Optimal Copyright (Rufus Pollock) [rufuspollock.org], and (for lighter reading) this analysis [ft.com] in the Financial Times.
I agree that shorter terms with an option to renew are desirable, but also hold that the length of renewal should be limited either explicitly or via economic incentives (ie. attaching significant cost for renewal after a reasonable period).
Re:Not your decision (Score:3, Insightful)
due to expire in 2030 (US) 2016 (Europe) currently estimated to be worth US$5 million
This assumes it doesn't get extended again before 2030.
Re:So sue to recover the losses (Score:4, Insightful)
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.
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.
Re:Not your decision (Score:3, Insightful)
I have no problem paying to see performances and sponsoring artists is an old tradition which worked quite well during the renaissance with no copyright around
Will you pay to hear me read my novel? The next show is tomorrow at 4:30am Eastern in my basement. Bring your own coffee.
Well, no, of course you won't. You'll expect me to publish it online and make it available for free. Or you will wait until someone else buys it, rips it, and publishes it online for free.
Message: Artists whose work translates digitally are screwed. Best, really, to become a sculptor. True, few enough people will actually pay to see a gallery showing, but if they want to "own" the art they will have to pay the artist for the privilege.
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.
Re:So sue to recover the losses (Score:2, Insightful)
The clause is vague, but I interpret it to mean that the intentions of the author should be respected, unless the use is obviously for parody.
A parody defense is perfectly acceptable, but the ID film in question is not a parody of Lennon, so I think the case should have gone to court to define whether the misuse of Lennon's work was justifiable.
I'm a rampant evolutionist and atheist, BTW, so judge my opinion accordingly.
Re:So sue to recover the losses (Score:3, Insightful)
es - educating children to believe 3000 year old myths are the truth is child abuse.
I'll happily discuss the matter in person, if you like :P
Bollocks (Score:3, Insightful)
Considering the clip makes up part of a commercial DVD and really has no relevance to the subject matter of that DVD, I don't see any fair use claim.
I don't support the current copyright laws, but whatever the lifespan of a copyright, the regulations should be obeyed. This case did not meet fair use guidelines, in fact it was an example of the rules acting as they should.
Considering both sides dropped their respective claims anyway, and the clip was removed from the dvd, I don't see what the fuss is about. If I want to make a dvd of video I've shot, and add a published artists music as a soundtrack, then I should be able to. The moment I attempt to profit financially from that DVD I should get permission from the rights holder and pay a fee if required.
This is normal (Score:3, Insightful)
Life is feeling pretty easy when you are rich. You can afford to have crazy theories about a utopian society.
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.
Re:So sue to recover the losses (Score:3, Insightful)
I see no reason to respect your POV
You don't have to; but you will respect their rights.
Re:So sue to recover the losses (Score:3, Insightful)
I don't think Mr AC is asking you to respect his POV. Merely his right to have his own POV.