SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------x YOKO ONO LENNON, SEAN ONO LENNON, : 08 Civ. 3813 (SHS)
JULIAN LENNON, and EMI BLACKWOOD :
PREMISE MEDIA CORP., L.P., :
C&S PRODUCTION L.P. d/b/a RAMPANT FILMS, :
PREMISE MEDIA DISTRIBUTION, L.P., :
and ROCKY MOUNTAIN PICTURES, INC., ::
SIDNEY H. STEIN, U.S. District Judge.
The widow and children of John Lennon bring this action against the producers of a current movie that plays fifteen seconds of the song “Imagine” without permission of the plaintiffs, who own the copyright to the song. The Lennons have moved for a preliminary injunction prohibiting the continued distribution of the movie in its present form and a recall of the existing copies. That motion is denied because plaintiffs have failed to meet the standard required for a court to grant a preliminary injunction. They have not shown a clear likelihood of success on the merits because, on the basis of the current record, defendants are likely to prevail on their affirmative defense of fair use. That doctrine provides that the fair use of a copyrighted work for purposes of criticism and commentary is not an infringement of copyright.
More specifically, plaintiffs seek a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 enjoining [prohibiting] defendants Premise Media Corp., L.P., C&S Production L.P. d/b/a Rampant Films, Premise Media Distribution, L.P., and Rocky Mountain Pictures, Inc., from further distributing their movie, “EXPELLED: No Intelligence Allowed” (the “movie”), in its present form and to recall the copies of the movie that are currently being exhibited.
Yoko Ono Lennon, Sean Lennon, and Julian Lennon are, respectively, the widow and sons of the late John Lennon, the composer of “Imagine,” and the renewal claimants for the copyright registration to the music and lyrics of “Imagine” (the “song”). EMI Blackwood Music, Inc. is the song’s publishing administrator. (Compl. ¶¶ 1-4.) Defendants are the producers and distributors of “Expelled,” a recently commercially released movie that concerns the theory of “intelligent design.” Plaintiffs allege that defendants’ use of an approximately fifteen-second excerpt of “Imagine” in “Expelled” without plaintiffs’ permission infringes their copyright in “Imagine.”
I. HISTORY OF THIS ACTION
Plaintiffs filed the complaint in this action in late April 2008, alleging claims of copyright infringement pursuant to 17 U.S.C. § 501 and trademark infringement pursuant to Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Plaintiffs subsequently brought the present motion by order to show cause dated April 30, 2008. That same day, after an initial conference and on consent of the parties, the Court entered a temporary restraining order (“TRO”) enjoining defendants from distributing any additional copies of “Expelled” for theatrical release, or producing or distributing any DVDs of the movie, pending a hearing on the motion for a preliminary injunction. On May 19, 2008, the Court heard oral argument on the motion for a preliminary injunction. At the conclusion of that hearing, the Court continued the TRO pending its determination of the motion for a preliminary injunction and directed plaintiffs to post security pursuant to Fed. R. Civ. P. 65(c). Now, after considering the arguments and submissions of the parties, as well as having viewed the movie, including the excerpt at issue, the Court makes the following findings of facts and conclusions of law.
II. FINDINGS OF FACT
“Expelled” is a feature-length (one hour, thirty-nine minute long) nationally released theatrical movie that addresses what it characterizes as a debate between 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...