"Imagine" This . . .

For fifteen seconds of the song Imagine, Yoko and Julian and Sean sued the producers of Expelled: No Intelligence Allowed. Infringement or fair use is the issue.

Fair use factors? The purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect on the potential market. Not a hard case: although the purpose was commercial, and the song is a core copyright work, not much was used and it did not effect the potential market.

The court agreed with the defendants that it was highly transformative. Rejecting the plaintiffs’ argument that the use was not transformative because the excerpt was played in the film without any alteration, the court held that the selection of the particular portion of the song was made for purposes of social commentary, namely, to criticize the song’s diminution of religion. This selection, and the juxtaposition with video also supporting this criticism, rendered the use transformative.

Transformative? Judge Pierre Leval developed the term in his article "Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990):

"The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses."

Judge Richard Posner, in the beany baby case, points out that "The defense of fair use, originally judge-made, now codified, plays an essential role in copyright law. Without it, any copying of copyrighted material would be a copyright infringement." Note that how good was Ben Stein in the movie matters not at all. As Judge Posner explains, "But the fair-use doctrine is not intended to set up the courts as judges of the quality of expressive works. See Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 582-83, 114 S.Ct. 1164. That would be an unreasonable burden to place on judges, as well as raising a First Amendment question."

What matters is that the first part of the four factors is not just about being commercial or non-commercial, but about the use. In the big case, the Supreme Court said that if the work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message," then it can be protected as fair use. "The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 1171 (U.S.,1994)