portion of Blanch’s photograph against a new background, defendants here play the excerpt of the song over carefully selected archival footage that implicitly comments on the song’s lyrics. They also pair the excerpt of the song with the views of contemporary defenders of the theory of evolution and juxtapose it with an interview regarding the importance of transcendental values in public life.
Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it. (Sullivan Decl. ¶ 16.) Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life.
Plaintiffs also contend that defendants’ use of “Imagine” is not transformative because it was unnecessary to use it in order to further the purposes defendants have articulated. Determining whether a use is transformative, however, does not require courts to decide whether it was strictly necessary that it be used. In Blanch, although certainly Koons did not need to use Blanch’s copyrighted photo, as opposed to some other image of a woman’s feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found a transformative use in the defendants’ unauthorized inclusion of several of the plaintiff’s images—principally concert photos—in a coffee-table book about the musical group the Grateful Dead. 448 F.3d at 607, 608-12. Although the defendants manifestly could have proceeded without the plaintiff’s images, which constituted only a small part of the book, this posed no obstacle to a finding of fair use.
Moreover, defendants contend that it was important that they use “Imagine,” rather than some other song expressing similar views, because it is the “paradigm example” that “has the most cultural force to it because it represents the most popular and persuasive embodiment of th[e] viewpoint that the world is better off without religion.” (Hearing Tr. at 23.) Defendants also assert that their purpose in using the excerpt of the song was in part to critique the emotional impact the song has on listeners. (Id. at 23-24.)
Finally, although a minor factor, it weighs in favor of a finding of transformative use that the excerpt of “Imagine” in “Expelled” constitutes only 0.27 percent of the movie’s total running time. See id. at 611 (noting that the plaintiff’s images constituted less than 0.20 percent of the defendants’ book and stating, “we are aware of no case where such an insignificant taking was found to be an unfair use of original materials”). (Sullivan Decl. ¶ 17.)
In sum, defendants’ use of “Imagine” is transformative because it does not “merely supersede[ ] the objects of the original creation” but rather “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579, 114 S.Ct. 1164. This consideration thus weighs strongly in favor of fair use.
