Page:Lennon v. Premise Media Corporation.pdf/16



Plaintiffs note that defendants obtained permission for all the other music used in the movie and contend that defendants’ failure similarly to seek permission to use “Imagine” evinces bad faith. The Second Circuit, however, has rejected this proposition. See Blanch, 467 F.3d at 256 (“We are aware of no controlling authority to the effect that the failure to seek permission for copying, in itself, constitutes bad faith.”). Indeed, the Second Circuit, in Blanch, approvingly quoted the dictum in Campbell that “‘[i]f the use is otherwise fair, then no permission need be sought or granted.’” Id. (quoting Campbell, 510 U.S. at 585 n. 18, 114 S.Ct. 1164). The fact that defendants here obtained permission to use the other music in the movie does not alter this conclusion.

The second fair use factor considers “the nature of the copyrighted work.” 17 U.S.C. § 107(2). This factor “‘calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.’” Blanch, 467 F.3d at 256 (quoting Campbell, 510 U.S. at 586, 114 S.Ct. 1164). Two distinctions are relevant to this analysis: (1) “whether the work is expressive or creative, such as a work of fiction, or more factual, with a greater leeway being allowed to a claim of fair use where the work is factual or informational,” and (2) “whether the work is published or unpublished, with the scope of fair use involving unpublished works being considerably narrower.” Id. (quoting 2 Howard B. Abrams, The Law of Copyright § 15:52 (2006)).

Defendants here concede, as they must, that “Imagine” is a creative work and, as such, is at the “core” of copyright protection. They note, however, that the work is widely published, which weighs a bit in favor of fair use. Moreover, this second statutory factor “may be of limited usefulness where the creative work of art is being used for a transformative purpose.” Bill Graham Archives, 448 F.3d at 612. Indeed, where, as here, the secondary work comments on the “social and aesthetic meaning” of the original, rather than “exploit[ing] its creative virtues,” the second fair use factor has “limited weight.” Blanch, 467 F.3d at 257. It thus weighs against a finding of fair use, but not strongly.

The third statutory fair use factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). The inquiry under this factor focuses on the copyrighted work, not the allegedly infringing one, Bill Graham Archives, 448 F.3d at 613, and considers whether “the quantity and value of the materials used are reasonable in relation to the purpose of the copying,” Blanch, 467 F.3d at 244 (internal quotation marks omitted). This factor has both “a quantitative and a qualitative component,” in that “[t]he factor favors copyright holders where the portion used by the alleged infringer is a significant percentage of the copyrighted work, or where the portion used is essentially the heart of the copyrighted work.” NXIVM, 364 F.3d at 480.

The quantitative component of this inquiry clearly favors defendants. Defendants use only a fifteen-second excerpt of “Imagine,” a song that runs three minutes in total. (Decl. of Dr. Lawrence Ferrara dated May 14, 2008 (“Ferrara Decl.”) ¶ 5.) Moreover, they selected a portion of the song (“Nothing to kill or die for/