Cite as 556 F.Supp.2d 310 (S.D.N.Y. 2008)
(Sullivan Decl. ¶ 18.) The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. (Id.) The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views. (Sullivan Decl. ¶ 14.)
The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” (Transcript of “Imagine” Clip in “Expelled,” Ex. B. to Sullivan Decl.) In defendants’ view, “Imagine” “is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not new and have been tried before with disastrous results.” (Sullivan Decl. ¶ 21.) The filmmakers “purposefully positioned the clip . . . between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior. . . . mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.” (Id. ¶ 20.)
Defendants’ use of “Imagine” is similar to the use at issue in a recent decision of the United States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons. There, the visual artist Jeff Koons copied photographer Andrea Blanch’s photograph from a fashion magazine without permission and incorporated a portion of it into one of his paintings. 467 F.3d at 247. Blanch’s photograph featured the legs and feet of a woman wearing expensive sandals, resting in a man’s lap in what appeared to be an airplane cabin. Id. at 248. Koons included the legs and feet in his painting, inverting their orientation, adding a heel to one of the sandals, and placing them, along with images of several other pairs of legs and feet, against a background including a grassy field and Niagara Falls. Id. at 247. The legs appeared to dangle over images of confections. Id.
The Second Circuit panel found Koons’s use of Blanch’s photograph transformative. Id. at 253. The court noted that Koons used the image for “sharply different” purposes than Blanch, in that he used it “as fodder for his commentary on the social and aesthetic consequences of mass media.” Id. at 252. As Koons had explained, by juxtaposing women’s legs against a backdrop of food and landscape, “he intended to comment on the ways in which some of our most basic appetites—for food, play, and sex—are mediated by popular images.” Id. at 247 (internal quotation marks omitted). Moreover, Koons altered the colors, background, medium, size, and details of the image in incorporating it into his painting. Id.; see also Bill Graham Archives, 448 F.3d at 611 (finding the defendants’ inclusion of the plaintiff’s images in a book to be transformative where the defendants significantly reduced the images’ size and “combin[ed] them with a prominent timeline, textual material, and original graphic artwork, to create a collage of text and images on each page”).
As in Blanch, defendants here use a portion of “Imagine” as “fodder” for social commentary, altering it to further their distinct purpose. Just as Koons placed a
