Stanford Center for Internet and Society

After both the state and federal courts rejected the attempts of Yoko Ono Lennon and EMI Records to enjoin the showing of Expelled: No Intelligence Allowed on the ground it used a 15-second fragment of John Lennon's Imagine, all of the plaintiffs in both cases have now withdrawn their claims and dismissed their cases.

This is the right result to be sure. There should never have been any doubt the filmmakers who were sued here had every right to use a short segment of a song for the purpose of criticizing it and the views it represents. But the right result came far too late. The mere pendency of these cases caused the film's DVD distributor to shy away from releasing the full film -- the version that includes the Imagine segment. So the film goes out on DVD on October 21 in censored form, illustrating the damage that even an unproved and unsupported infringement claim can do.

At the same time, the result here -- great but imperfect -- is a fantastic lesson in how we might start to solve the fair use dilemma. We launched the Documentary Film Program with Media Professional Insurance and Michael Donaldson to help solve a critical problem: fair use rights are expensive to use because they require lots of lawyer time. Media Pro took the visionary step of insuring fair use risks. We and Donaldson agreed to mediate these risks by vetting the fair use issues ahead of time. (We do it for free; Donaldson has to make a living.) Donaldson reviewed Expelled, and Media Pro insured it. When its producers got sued, we agreed to defend it pro bono, alongside the producers' regular counsel at the Locke Lord firm. Together we won, kept the cost to Media Pro minimal, and thus demonstrated that the fair use problem can be solved, in many (but perhaps not all) cases by teamwork like this.

I'm proud to have been a part of it.

Two months ago, a Manhattan federal court rejected Yoko Ono Lennon's attempt to enjoin the further showing and distribution of Expelled: No Intelligence allowed on the ground that film used fifteen seconds of the John Lennon song Imagine.

EMI Records filed a nearly identical claim in state court based on the film's use of the sound recording, and demanded a nearly identical injunction. We're happy to report the state court has now denied EMI's request for an injunction.

The state court's order is particularly important because it establishes that fair use applies to the use of sound recordings under common law copyright, and rejects the insane conclusion of the Sixth Circuit in Bridgeport Music v. Dimension Films that there is no such thing as de minimis use when it comes to sound recordings.

Read the full order here.

We're happy to report that the Court rejected Yoko Ono Lennon's request to enjoin the further showing and distribution of Expelled. In a twenty-three page memorandum opinion and order issued today, the Court held that the producers and distributors of Expelled are likely to prevail on their fair use defense and denied Plaintiffs' motion for a preliminary injunction in its entirety. Read the full opinion here.

Today we filed our oppositions to the preliminary injunction motions filed by Yoko Ono Lennon (federal case) and EMI Records (state case). They are attached below.

Expelled: No Intelligence Allowed is a controversial film about a contentious issue: whether proponents of intelligent design are being unfairly silenced in academia and beyond. It has been shown on more than 1000 theater screens nationwide, and its producers have drawn praise from some circles and scorching criticism from others. Right or wrong, good or bad, it's a film that explores important issues of free speech, faith and science.

Yoko Ono Lennon has sued the film's producers in federal court because the film uses a fifteen second clip of the John Lennon song "Imagine." EMI, the record label that asserts ownership in the recording of song, has also sued the producers in state court. Both seek an immediate injunction forcing the removal of "Imagine" from the film.