John Lennon’s widow Yoko Ono has filed a copyright infringement lawsuit against the makers of Expelled, on the grounds that they did not get Ono’s permission to use portions of Lennon’s hit song “Imagine” in the movie. The case is Yoko Ono Lennon, et al. v. Premise Media Corporation (S.D.N.Y., No. 08-03813).
The complaint alleges that the film (which I have not seen) includes a portion of the song and displays subtitles with the lyrics of the song. Interestingly, the complaint alleges that while the film includes clips of songs by Bob Dylan, Norman Greenbaum, Depeche Mode, and others, the credits state that these songs were included with permission of the relevant copyright holders—whereas the credits list the relevant information for “Imagine” while omitting the reference to the copyright holders’ permission, indicating that the producers knew they were using the song without permission.
Ono’s complaint notes that it was only on April 15, when news reports mentioned the use of the song, that Ono became aware of the infringement, and that “Internet ‘bloggers’ immediately began accusing Mrs. Lennon of ‘selling out’ by licensing the Song to Defendants.”
On the face of it, Ono would seem to have a pretty strong case here. It’s somewhat reminiscent of the lawsuit filed by the sculptor Frederick Hart against the producers of the film Hart’s great “Ex Nihilo.” Hart sued and won, not only forcing the movie’s producers to change the film when it was shown on Pay-Per-View, but also requiring them to distribute stickers to put on copies of the DVD, noting that Hart had not given permission for the use of his sculpture.
The producers may try to argue that their use of the song in Expelled is protected under the “fair use” doctrine—on the grounds that the song is used as a way of showing the nasty influence of evil-ution on popular culture. If they argue this, the court would have to evaluate the argument in light of the “fair use” factors listed here. Having not seen the movie yet, I can’t state an opinion as to whether they would win such an argument, but I suspect it’s unlikely, particularly given that the producers obtained permission for the use of the other songs in the movie, and because the use of a popular song in a commercial film is much closer to unfair use than is a serious discussion of the lyrics of a song in, say, a classroom setting or a free televised debate.
Update: More interesting thoughts at A Candid World.