Cite as 556 F.Supp.2d 310 (S.D.N.Y. 2008)
proponents of intelligent design and the scientific theory of evolution. (Decl. of A. Logan Craft dated May 13, 2008 (“Craft Decl.”) ¶ 7.) One of the executive producers of “Expelled” contends that the movie “examines the scientific community’s academic suppression of those who ask provocative questions about the origin and development of life.” (Id. ¶ 7.) According to that same producer, “the film undertakes to inspire viewers to participate in the scientific, political, cultural, and religious debates surrounding this issue, to urge the scientific community to consider views that differ from those held by many members of that community, and to take action to assure that candidates for public office and elected officials take positions and action to accord free speech rights to critics of the adequacy of Darwinian evolution.” (Id. ¶ 8.) The filmmakers also candidly concede that “Expelled” was “produced and distributed for the purpose of earning a financial return for the investors.” (Id. ¶ 13.)
The movie is narrated by Ben Stein, a well-known actor and writer (id. ¶ 9) and consists principally of Stein’s interviews with various proponents of intelligent design and defenders of Darwinian evolution, interspersed with segments of historical stock footage (Decl. of Ronald C. Rodgers dated May 14, 2008 (“Rodgers Decl.”) ¶ 11). As another of the producers of “Expelled” explains it, the use of archival footage serves “to create metaphors and analogies to enhance the message [the filmmakers] are trying to convey.” (Id.) The movie also features several other well known songs. Defendants obtained permission to include every one of those songs in the movie, with the exception of “Imagine.” (Transcript of Preliminary Injunction Hearing dated May 19, 2008 (“Hearing Tr.”) at 8.) Defendants have not used “Imagine” in promoting the movie. (Craft Decl. ¶ 20.)
John Lennon, the world-famous songwriter and former member of the Beatles, wrote the words and music of “Imagine.” Plaintiffs claim, most likely without exaggeration, that Lennon is a “musical icon of the twentieth century” (Aff. of Yoko Ono Lennon dated April 29, 2008 (“Ono Aff.”) ¶ 2) and that “Imagine” is one of the most recognizable songs in the world (Compl. ¶ 14). Since John Lennon’s death in 1980, Yoko Ono Lennon has worked actively with EMI Blackwood Music, Inc. to control the manner in which Lennon’s music is licensed and used. (Ono Aff. ¶ 3.) “Imagine” has been licensed and featured in numerous contexts, including the 1984 film “The Killing Fields,” the opening ceremony of the 2006 Winter Olympics, and the New Year’s Eve festivities in New York City’s Times Square. (Id. ¶ 4.) In addition, the Recording Industry Association of America has included the song in its ranking of the most historically significant recordings. (Id.)
The fifteen-second excerpt of “Imagine” used in “Expelled” comes approximately one hour and five minutes into the movie and includes ten words from the song. While the fifteen seconds of music play, the lyrics appear on screen in subtitles, as follows:
- Nothing to kill or die for/
- And no religion too.
(Decl. of John Sullivan dated May 13, 2008 (“Sullivan Decl.”) ¶ 15.) Behind the subtitles, four brief sequences of black and white archival footage run. The first sequence features a group of children in a circle; the second is a sequence of a young girl spinning and dancing; the third sequence is of a military parade, which gives way to a close up of Joseph Stalin waving. (Id. ¶ 18.) The four sequences constitute 0.27 percent of the total movie’s running time. (Id. ¶ 17.)
Immediately preceding the excerpt in the movie are short segments in which
