How fair is fair use?

In August 2008, Capitol Records, owner of the copyright in John Lennon’s song “Imagine,” brought a preliminary injunction before the Supreme Court of the State of New York to prevent Premise Media Corporation from making unauthorized use of the recording in their film “EXPELLED: No Intelligence Allowed.” Premise Media argued that the film supports the existence of God, where “Imagine” serves as an illustration of the discourse against religion.

US copyright law requires that a substantial amount of the song needs to be used to qualify as infringement (17 USC 114(b)). The court found that 15 seconds of a 3 minute song is substantial. As in the Canadian Copyright Act, US copyright law contains a fair use exemption. However, unlike the Copyright Act, the US law presents a list of factors to be weighted in determining fair use. These include – (1) purpose and character of use (does the derivative work promote science and arts by creating a transformative work?), (2) nature of copyright infringement (does the derivative work infringe on the core rights afforded to copyright owners?), (3) amount and sustainability of portion used compared to the copyrighted work as a whole, and (4) effect on the market for the copyrighted work.

The court found that the film’s use of a relevant portion of the “Imagine” recording to illustrate a specific point of their premise made it a transformative work. The film didn’t simply rest on the foundation built by the copyrighted work. It was a critical work in its own right. Another factor that favoured the defendants was the effect on the market for the song, which would only be aided by the film’s distribution. However, the court found that the market for licensing would be adversely affected by the unlicensed use of the song. Weighing the fact that there was infringement of core rights against the other factors, the court found fair use, even though the goodwill and reputation of the plaintiffs was irreparably harmed.

In my view, the discussion essentially boils down to balancing the financial rights of the copyright owner and the public’s right to fair use. On one hand is the company that paid for the licensing rights of the song, makes its money through licensing, and has been deprived of this right by the film producers, who licensed other recordings in their film. If indiscriminate use is allowed, the market for licensing would collapse. On the other hand, the film is a critical work that adds to the public discourse. The use of the song is not merely a publicity ploy. The creator is dead and the estate is well off, thus the use of the song will not significantly affect their fortunes. In light of these facts, can financial rights be used to justify trampling the furtherance of arts and science? What about financial considerations on behalf of independent filmmakers who may lack the financing to license (possibly) costly famous songs? These issues need to be addressed when the matter goes to trial.


1.    Original article –
2.    Ruling –
3.    US copyright law –