Forgot your password?
typodupeerror
The Courts Government News Your Rights Online

Yoko Ono/EMI Suit Exposes Fair Use Flaw 409

Posted by samzenpus
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."
This discussion has been archived. No new comments can be posted.

Yoko Ono/EMI Suit Exposes Fair Use Flaw

Comments Filter:
  • by InvisblePinkUnicorn (1126837) on Thursday October 09, 2008 @07:59AM (#25311783)
    Can't the film makers just countersue to get the losses incurred by this lawsuit? If not, then there's a serious problem with the judicial system.
    • by Okind (556066) on Thursday October 09, 2008 @08:04AM (#25311815) Homepage

      > 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?

      • by Coryoth (254751) on Thursday October 09, 2008 @08:47AM (#25312173) Homepage Journal

        > 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: (Score:3, Insightful)

          by Anonymous Coward

          > 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

          • by moderatorrater (1095745) on Thursday October 09, 2008 @11:03AM (#25314199)
            Bullshit. You can copy portions of the work for a scholarly work (which a documentary is, or at least attempting to be) for the intent to criticize it as long as it doesn't take too much of the work or take away from the original works market. So, in this case, it's at least attempting to be a scholarly work that's criticizing 15 seconds of one of the most famous songs from the most famous band in US history. For some reason I don't think that this 15 second clip is going to undermine their attempts to sell the song.

            Don't agree with the film all you want, but this is clearly fair use.
          • by NeutronCowboy (896098) on Thursday October 09, 2008 @11:19AM (#25314503)

            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.

          • by multisync (218450) * on Thursday October 09, 2008 @11:58AM (#25315259) Journal

            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.

            From the article linked to in the summary:

            There should never have been any doubt the filmmakers who were sued here had every right to use a short segment of a song for the purpose of criticizing it and the views it represents.

            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: (Score:3, Interesting)

            by lysergic.acid (845423)

            that's the problem with how fair use is legally defined. copyright laws are meant to encourage cultural contribution by giving copyright holders the right to control the distribution of their work for a limited time, after which it is released into public domain. but the duration of legal copyrights has more than quadrupled since the 1800's from 28 years to 115 years.

            fair use was established because copyright laws had been corrupted from their original purpose and no longer served public interest. copyright

      • Re: (Score:2, Insightful)

        by RulerOf (975607)
        > How will you coutersue if you're bankrupted before you can?

        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.
      • You can not be my Yoko Ono.

      • How will you coutersue[sic] if you're bankrupted before you can?

        You need Green & Fazio. They don't get a dime until you get 3 dimes.
    • by apathy maybe (922212) on Thursday October 09, 2008 @08:12AM (#25311873) Homepage Journal

      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?)

      • 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...

      • by Anonymous Brave Guy (457657) on Thursday October 09, 2008 @08:40AM (#25312101)

        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.

        • Re: (Score:3, Insightful)

          by discogravy (455376)

          I'm not sure the word "justice" would feature in my description, though.

          they call it a "court of law" not "court of justice".

      • Very good point. I personally think that in a civil suit, if the person who filed suit loses, they should have to pay the other party's legal expenses plus a set amount in damages. That way, you'd really have to think before you went to court over something.
      • by dkleinsc (563838)

        To answer your off-topic question: Lennon was definitely a leftist, and there were definitely some folks who wanted him pinned as a communist, notably Richard Nixon. The film "The U.S. vs. John Lennon" discusses in great detail his political activities.

      • 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?)

    • by rssrss (686344) on Thursday October 09, 2008 @09:01AM (#25312313)

      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.

  • Nothing new... (Score:5, Insightful)

    by A beautiful mind (821714) on Thursday October 09, 2008 @08:05AM (#25311817)
    Fair use is a legal defense to be used in court, therefor everyone who wants to avoid defending their case in a court avoids including copyrighted stuff in their works even if it's clearly fair use.

    Terrible state of affairs.
    • Re: (Score:3, Informative)

      by crnium (544896)

      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

  • Money protects money by the overwhelming use of money. If you can't afford the same legal team Yoko has scouring indie film makers for infringement, you whimper and give in right or wrong. Same with the RIAA: bow unless you have a defense team assembled.

  • I mean ... (Score:4, Insightful)

    by Van Cutter Romney (973766) <sriram.venkatara ... .com minus punct> on Thursday October 09, 2008 @08:10AM (#25311867)
    Could it be any other song?
  • Imagine (Score:5, Informative)

    by wombatmobile (623057) on Thursday October 09, 2008 @08:16AM (#25311899)
    When John Lennon wrote "Imagine no possessions" he was worth $150 million.
    • Re:Imagine (Score:5, Funny)

      by HBI (604924) <kparadine@@@gmail...com> on Thursday October 09, 2008 @08:20AM (#25311935) Homepage Journal

      Hypocrisy only counts if the media calls you on it.

    • He is said to have bought the entire apartment below theirs in NY, and used it to hold their collection of fur coats. If he hadn't been killed when he was, he might just have lived to be bombed by an animal rights activist.

      Personally, I was around in the 60s, and the Beatles were far inferior to Pink Floyd. Mind you, I'm a Southerner, I have to say that.

    • by aussie_a (778472)

      That's why he had to imagine it. If he had no possessions it would have been called "no possessions, so could you please spare a pound?"

    • by QuantumG (50515) *

      Yeah, cause "imagine being poor" was what he was trying to say.

      All that "brotherhood of man" stuff, meh, he wasn't trying to suggest that society was sick and pathetic or anything.

      • by BobMcD (601576)

        "Be the change you want to see in the world" was before John Lennon's time. Wonder if he did? Does anyone know?

    • This is normal (Score:3, Insightful)

      by OrangeTide (124937)

      Life is feeling pretty easy when you are rich. You can afford to have crazy theories about a utopian society.

  • by timmarhy (659436) on Thursday October 09, 2008 @08:17AM (#25311903)
    why does anyone need the exclusive rights to something for more than 10 years? if you can't make your money on it in 10 years, it's time to stop flogging a dead horse, and if it's still popular it's long since passed into pop culture and should enter the public domain in recognition of all the support it's had...
    • True. But famous kids would stop coming home to the 'rents house for the holidays if they thought they weren't getting royalties down the road when the death rattle sounds.

      "Take this job and shove it. I got a famous Dad."

    • I think you'd be rightly pissed off if you wrote a book, it didn't really sell, and then ten years later Fox released a profoundly successful blockbuster hit based on it, starring Bruce Willis in that role you really imagined for Herman Munster. And you got absolutely nothing for that. Likewise if ten years after your underground rock anthem was released to cult popularity, it was the best-selling techno-remixed ring-tone-tastic theme tune to Big Brother: The Z-List Edition, and your only available course
  • She's right (Score:5, Funny)

    by 4D6963 (933028) on Thursday October 09, 2008 @08:27AM (#25311991)

    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.

    • 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?

      And if you are smart enough - you just get many documentaries, each with a different 15 second fragment, and hey presto you have the whole song.

      Why did I not think of that before ? I'll never have to pay royalties again!

    • I hate to admit it, but she's right. Everybody knows that such types of fair-use are what make *Ring-Tone Sales* plummet. Why buy John Lennon's *Ring-Tone* 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?
      ------------------

      Fixed that for ya!

      • by 4D6963 (933028)

        Oh my God, are you saying that these filthy pirates will go as far as hooking up a DVD player to their cell phone just to avoid paying for a ringtone??

        Blast! They just won't stop until we sue and bankrupt the last of them!

  • The film is rubbish (Score:5, Interesting)

    by Improv (2467) <pgunn@dachte.org> on Thursday October 09, 2008 @08:28AM (#25312005) Homepage Journal

    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.

  • Fool as a client? (Score:5, Interesting)

    by kieran (20691) on Thursday October 09, 2008 @08:41AM (#25312107)

    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)

      by QuantumG (50515) * <qg@biodome.org> on Thursday October 09, 2008 @09:04AM (#25312345) Homepage Journal

      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.

    • Someone who represents themselves really does have a fool for a client.

      Representing yourself is generally done under the basic principle that the court is just and fair and will come to the right decision. Time and again this has been proven completely and utterly wrong.

      Courts and the bar system are essentially a private guild to which the government subcontracts the legal system. Like all guilds, the court is a closed shop. They operate under their own idiosyncratic rules and customs and demand that you do

  • Imagine... (Score:5, Insightful)

    by Ihmhi (1206036) <i_have_mental_health_issues@yahoo.com> on Thursday October 09, 2008 @08:41AM (#25312109)

    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.

    • by QuantumG (50515) *

      For sure. And I know it may be a little off-topic but this is basically the philosophy of the Zeitgeist [zeitgeistmovie.com] people (along with some of the funniest tin foil shit I've ever seen in film). This is basically the "if everyone would play nice the world would be great" school of thought.. and the way to get there is to subjugate yourself to being "part of something greater". Apparently the problem is not religion.. it's the non-inclusiveness of current religion. If we had one religion that was all about people wo

  • The irony isn't that the song was imagine, the irony is that the US Constitution grants Congress the power to give copyright "To promote the progress of science and useful arts".

    Good luck getting John Lennon to write any more songs. Today's copyright law is clearly unconstitutional and perhaps should not be obeyed.

  • by crosbie (446285) <crosbie@digitalproductions.co.uk> on Thursday October 09, 2008 @09:15AM (#25312475) Homepage

    '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.

  • by voss (52565) on Thursday October 09, 2008 @09:19AM (#25312531)

    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.

    • by Sockatume (732728)
      More reasonably, they can (as happens in some other cases) be banned from filing lawsuits for being a vexatious litigant. I think.
  • Sharing all the world

  • No such thing (Score:4, Informative)

    by torstenvl (769732) on Thursday October 09, 2008 @09:51AM (#25312953)

    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.

  • The article asks... (Score:3, Interesting)

    by maillemaker (924053) on Thursday October 09, 2008 @10:22AM (#25313427)

    The article asks, "Is Fair Use decided by who has the most money?"

    The answer, of course, is yes.

    Money decides nearly everything.

  • by Patrick May (305709) on Thursday October 09, 2008 @10:22AM (#25313445)
    The 1976 Copyright Act (quoted on Wikipedia) says:

    Notwithstanding the provisions of sections 17 U.S.C. Â 106 and 17 U.S.C. Â 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    1. the nature of the copyrighted work;
    2. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    3. the effect of the use upon the potential market for or value of the copyrighted work.

    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.

  • Bollocks (Score:3, Insightful)

    by smoker2 (750216) on Thursday October 09, 2008 @12:41PM (#25316111) Homepage Journal
    The submitter and the so called legal expert claims this was a clear case of fair use.
    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.

Those who can, do; those who can't, simulate.

Working...