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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019) and AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021).

Thursday, June 05, 2008

A small victory for freedom of speech

Expelled is a creationist propaganda film starring Ben Stein. Its main claim is that various academics have been "expelled" from the academy for challenging Darwinian evolutionary theory. However, once examined in detail, this turns out to be a farrago of lies and distortions as I've discussed previously. That, however, does NOT mean that its makers must be wrong on every single controversial issue.

One ongoing issue relates to the movie's use of an excerpt from the John Lennon song "Imagine", apparently in a bitterly ironic way. The song was used without permission, and thus (prima facie) is in breach of copyright. As the movie plays the famous lines in which we're invited to imagine "Nothing to kill or die for/And no religion too", we are shown images relating to totalitarian communist regimes, culminating in a close-up of Stalin.

The clear effect of the juxtaposition is to attack the song's philosophical and emotional message. While the precise nature of the attack is open to interpretation, one way to take it is that a world without religion would be horrific. This is consonant with the movie's generally pro-religious message and its linking of Darwinian theory with atheism. (The makers have also argued that the excerpt has been used in such a way as to make the point that opposition to religion is not a new phenomenon.)

Should this use of "Imagine", without permission from the parties who hold copyright in its words and music, be allowed by law? Over the past couple of months, I've consistently argued "yes".

To recap the argument, intellectual property law (including copyright law) exists to encourage the creation of valuable cultural products that, by their very nature, are not scarce and so cannot readily be taken from, or kept from, the commons and turned into property. Items of intellectual property are non-rivalrous because they essentially consist of information. Information can be replicated endlessly (in contrast to, say, a particular hamburger or a particular block of land or a particular, physical CD that your lover gave you for your birthday - all of which are genuinely scarce resources). It is socially important to create a kind of property in the information that cultural products such as songs and recordings ultimately consist in, but it takes a legislative scheme to accomplish that.

However, it is also socially important that items of intellectual property be open to criticism relating to their aesthetic form or to their explicit or implicit ideas. Public policy needs to strike a balance between (1) offering the creators of intellectual property a means of obtaining income from it, thus encouraging the creation of valuable works, and (2) allowing criticism and comment that relates to these works once they are created. Copyright law should not work in such a way as to suppress criticism, which would be contrary to its entire purpose.

Putting it simply, we want to encourage people to create valuable cultural products, such as songs, but we do not want to stop others from criticising those products once made. If somebody wishes to criticise a song such as "Imagine" - or some aspect of it or its message - they should be free to do so (and should not be told how; e.g. they should not be confined to abstract discussions in expository prose but, within reason, they should be able to make the point in their own way).

In this case, "Imagine" was not being played for its entertainment value or as an ornament to, say, product advertising. It was not an attempt to usurp the market for the song while getting away without paying.

Rather, an excerpt was selected to make a point: to juxtapose it with certain images in order to attack on the song and what it stands for. Arguably, no more of the song was played than was needed to make the point, so this was not a mere contrivance for what was, in reality, a use of the song in its "normal" way, i.e. its entertainment value. Nor was it a case of co-opting the song for a strictly commercial use such as trying to sell running shoes. Rather, a comment was being made on issues of public interest, such as atheism and secularism. From first principles, such use should be allowed by the law (irrespective of whether the entertainment industry would normally adopt the cautious practice of attempting to get permission even in a case like this).

I've been cautious about whether this kind of argument actually would prevail in the courts, because I'm not familiar with how the relevant case law has developed to this point, but the in-principle argument, based on the underlying policies reflected in the law, always seemed to me to be extremely powerful. I was pretty convinced that there was a reasonable legal argument available that what was done by the moviemakers fell under the doctrine of fair use.

John Lennon's widow, Yoko Ono, and children (the plaintiffs) recently sought to stop the use of "Imagine" in Expelled, arguing that it breached their copyright in the song and its lyrics.

In a judgment issued a few days ago, the judge hearing the case denied the motion by the plaintiffs for an injunction to stop further distribution of Expelled, and to recall existing copies, pending trial. The judge held that the plaintiffs had failed to meet the appropriate test of showing a clear likelihood of success on the merits of the case at trial; on the contrary, the defendants (Premise Media and Rocky Mountain Pictures, the makers of Expelled), were likely to succeed on the basis of their defence of fair use.

Note that this is only a preliminary decision. It is still possible that Yono Ono and the other plaintiffs could succeed in the full trial or on appeal. For the moment, though, the outcome is a victory for freedom of speech. If the reasoning stands the test of time, it will expand the legal entitlement to make legitimate use of copyrighted materials for criticism or commentary.

I'm not especially pleased that the outcome to this point in this particular case has favoured the makers of Expelled, a movie whose message I oppose and even despise. However, freedom of speech should apply to our opponents as well as our friends and allies; if we don't accept that, we don't really support the concept. This small victory for freedom of speech is welcome, and I look forward to seeing the final outcome of the litigation.


Anonymous said...

Absolutely well done, Russell! I only wish I had said it first.

Anonymous said...

I disagree - everything suggests that the song was not "criticized" in the film - instead, the secularism which it happens to mention (not at all uniquely) was "criticized". Shouldn't a "fair use" ruling require that use of the specific copyrighted material in question was necessary?

To me, this seems like nothing to do with "free speech" - the "points" made during the Imagine sequence could equally have been made without using any of the recording whatsoever.

Russell Blackford said...

In cases involving free speech (including things like fair use), there's no requirement that you couldn't have made your point in any other way. (I'm a bit surprised to keep coming up against this misconception, but a lot of people do seem to have it so it's worth identifying.)

Think about it. Think of books, political campaigns, advertisements, etc. There are always many ways to make the abstract point.

Free speech isn't just about being able to convey some abstract message ... it's about many other things, including being able to express your message in the way you find most appropriate or compelling or emotionally powerful. This might involve parody, or quoting another message in such a way as to frame it ironically (essentially what was done here), or going at it indirectly by criticising a contrary view put forward by someone else, or using images or gestures, or rhetorical language ... or many other techniques or combinations. The fact that the same abstract message could have been conveyed in some other way, e.g. in expository prose or by a talking head reading words from an autocue, is simply not relevant.

E.g. if someone burns a flag it's not relevant that they could have said whatever it is that they intended to convey (e.g. "I hate such and such country" or "I repudiate the policies of such and such country") by using words. Under US law, the flag burning would be protected speech, and no one could get away with arguing that the same point could have been made without burning the flag. Perhaps it could be, but free speech is much wider than that.

Tony Comstock said...
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