Judge Richard B Lowe III ruled in the Supreme Court of the State
of New York that "fair use is available as a defence in the context
of sound recordings." Past rulings outlawed the use of even very
short music clips without copyright holders' permission.
Premise Media Corporation and others produced Expelled: No
Intelligence Allowed, a film which claimed that exponents of
Intelligent Design theory are being unfairly criticised and
censored for their association with it.
The film attempts to offer evidence that proponents of
Intelligent Design are being unfairly criticised, censored and
expelled from schools, universities and other forums.
Intelligent design theory argues that evolution is a fiction and
that the world is so complex that it must have been designed by an
omnipotent being, usually taken to be a Christian god.
While quoting from critics of Intelligent Design who claim that
religion is a source of violent conflict that would be better
replaced by rational science, the film uses a clip of the part of
Imagine containing the words "Nothing to kill or die for/And no
religion too".
In rulings which outlawed the use of samples in hip hop without
artists' permission, US courts have previously said that using even
the smallest clip of a song can be copyright infringement. But the
Supreme Court of the State of New York has allowed Expelled's use
of the 15-second Lennon clip.
The Court rejected record company EMI's argument that any clip
no matter how small of a song could be copyright infringement. A
landmark case involving NWA's sampling of a two-second guitar part
in Funkadelic's Get Off Your Ass and Jam was criticised by Judge
Lowe.
Lowe said he agreed with an academic's criticism of the ruling,
which said that it was based on a logical fallacy and ignored legal
precedents.
Lowe also said that the film producers' argument that in order
to qualify for copyright infringement penalties they would have to
have used the entire song was also wrong.
EMI was seeking a preliminary injunction, to have the film
banned pending the result of a full trial.
The film producers argued that they made fair use of the work
and that EMI's case should be thrown out. Copyright law allows
certain uses of works without payment or creators' permission. Fair
use can be argued if the use of the work is transformative, though
other factors will be considered.
The film producers argued that their use was transformative
because it was criticism. By placing the clip where they did in the
film they were criticising its stance that the world would be a
happier, safer place without religion.
"This Court finds that [the producers'] use of John Lennon's
Imagine Recording is transformative," said the ruling. "That the
secondary work may have a commercial purpose does not undercut a
finding of transformative use."
The Court conceded that 15 seconds of a three-minute song was a
significant portion of the song, but said that it backed the view
of an earlier judgment in another case that sometimes use of
significant portions of material was necessary. "If [the producers]
had used a significantly less important part of the original, it is
difficult to see how its criticism would have been apparent," said
the ruling.
"Because an analysis of fair use favors a finding of fair use,
Plaintiffs fail to demonstrate a probability of success," wrote
Judge Lowe.
The Court did find, though, that the use of the material in the
film affected EMI's goodwill and reputation, causing irreparable
harm.
The Court denied both EMI's request for a preliminary injunction
and the film producers' request to have the case dismissed and said
that the producers still had a complaint to answer.
"Although this Court cannot conclude that Plaintiffs will
probably succeed on its claim for common law copyright
infringement, on their motion to dismiss, Defendants fail to show
that Plaintiffs fail to plead a cause of action."
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