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Sampling a song can be fair use, rules US court

The producers of a film defending the anti-evolutionary theories of Intelligent Design probably did not infringe copyright when they used a sample of John Lennon's song Imagine in the film, a New York court has ruled.21 Aug 2008

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."