‘Expelled’ fair use upheld

Tuesday, June 3, 2008

The use of a 25-second clip from John Lennon‘s song Imagine in a film critical of the Theory of Evolution has been deemed likely to be defensible under a fair use doctrine by U.S. District Judge Sidney Stein.

The film Expelled: No Intelligence Allowed, produced by Premise Media and starring comedian Ben Stein, uses the clip to represent “the most popular and persuasive embodiment of this viewpoint that the world is better off without religion”, according to Premise representative Anthony Falzone at a hearing last month. In the song, Lennon proposes the hypothetical “Imagine there’s no heaven … and no religion too”.

On April 23, 2008, Lennon’s widow, Yoko Ono, along with his sons Julian and Sean, and music producer EMI Blackwood, Inc., filed suit against Premise Media seeking damages for alleged copyright infringement, as the song had not been licensed to appear in the film. On May 19, a preliminary injunction was issued, preventing distribution of the film. On June 2, Judge Stein of the United States District Court for the Southern District of New York ruled that the fair use defense would likely succeed if it went to court, and lifted the injunction. In his judgement, he wrote that “the fair use of a copyrighted work for the purposes of criticism and commentary is not an infringement of copyright”.

Expelled is a documentary that claims that intelligent design proponents are being suppressed by the majority of the scientific community. It has received criticism from many scientists and film critics, and has also faced copyright claims over animated sequences that resemble the short animation The Inner Life of the Cell, produced by XVIVO and Harvard University.

In a statement Ono commented that “it is a pity that this decision weakens the rights of all copyright owners”. She plans to appeal the decision.