UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------- --- ------- ------------ ----------- --- ------- --- --- )(
YOKO ONO LENNON, SEAN ONO
LENNON, JULIAN LENNON, and EMI
BLACKWOOD MUSIC, INC., 08 CV 3813 (SHS)
Plaintiffs,
-against -
PREMISE MEDIA CORPORATION, L.P.,
C&S PRODUCTION L.P. d//a RAMP ANT
FILMS, PREMISE MEDIA DISTRIBUTION
L.P. and ROCKY MOUNTAIN PICTURES,
INC.,
Defendants.
---- - ------ --- ------- --- -- -- ------ -- -- ------ ---- ------ --- )(
DEFENDANTS' MEMORANDUM OF LAW IN OPPOSITION
TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Anthony Falzone (Admitted Pro Hac Vice)
Julie Ahrens (JA-0372)
Center for Internet and Society
STANFORD LAW SCHOOL
559 Nathan Abbott Way
Stanford, CA 94305-8610
(650) 736-9050 Telephone
Case 1:08-cv-03813-SHS Document 30 Filed 05/15/2008 Page 1 of 30
TABLE OF CONTENTS
TABLE OF AUTHORITIES. ................. ............................................................................ ii
PRELIMARY STATEMET ................................ .........................................................1
BACKGROUN ... ........... ..... ............................. ........ ..................... ..... ...... .........................2
ARGUMT .............................. .......... ..... .................................... ......................................3
i. Plaitis Must Meet An Exceedgly High Burden To Obta
A Mandaory Injunction That Silences Expressive Speech On An
Importt Issue Of Public Concern... ............. ....... ............................................... ...3
II. Plaitiffs Have Not Established Likelihood Of Success On The
Merits Of Their Copyrght Ingement Clais ...................................................5
A. There Is A Signficant Question Regardig Ownership Of The
Copyrghts Plaitiffs Assert.................................................. ......................5
B. Defendants' Use Of Imagine Is Protected By Fai Use ..............................5
1. Puose And Character Of The Use .........................................6
a. Transformative P11ose ...........................66........................6
b. Commercial Use............................................................... i 3
2. Natue Of The Copyrghted Work.............................................l4
3. Amount And Substatiality Of The Porton Used....................... 14
4. Maket Effect............................ ..................... .......................... .....16
a. Substatial Public Interest.............................................. 16
b. No Cognble Har .......................................................17
III. Plaitiffs Canot Show Ireparable Har And The Balance Of
Hardships Tips Strongly In Favor Of Defendants............................................... 19
A. Plaitiffs Fail To Show Ireparble Har ............................................19
B. The Balance of Hardships Weigh Heaviy in Defendats' Favor............22
CONCLUSION......... ................... ...................... .................. ..... .................................... .....24
CERTIFICATE OF SERVICE................................................. ...................................... ...25
i
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TABLE OF AUTHORITIES
CASES
American Geophysical Union v. Texaco, Inc.,
60 F .3d 913 (2d Cir. 1994)..................................... ........ ..............................................16
Bill Graham Archives v. Dorling Kindersley Ltd,
448 F .3d 605 (2d Cir. 2006)................................................................................. pasim
Blanch v. Koons, .
467 F.3d 244 (2d Cir. 2006).................................................................;..........6, 7, 9, 10,
13, 14, 15, 16
Byrne v. British Broadcasting Corp.,
132 F. Supp. 2d 229 (S.D.N. Y. 2001 )..........................................................................12
CBS Inc. v. Davis,
51 0 U.S. 1315 (1994) ......................................................................................... ..........22
Campbell v. AcuffRose Music, Inc.,
510 U.S. 569 (1994) ..... ............... ............ ............................................................. passim
Canon Inc. v. GCC International, Ltd,
450 F. Supp. 2d 243 (S.D.N.Y. 2006), afJd, 2008 WL 213883 (2d Cir. Jan.
25, 2008) ................. .............. .............................................................. ....... ................ ..20
Castle Rock Entertainment, Inc. v. Carol Publg Group, Inc.,
150F.3d 132 (2d Cir. 1998).......................................................................6, 13, 15, 16,
17, 18
Caterpilar Inc. v. . Walt Disney Co.,
287 F. Supp. 2d 913 (C.D. Ill. 2003) ..........................................................,........23
Cj Stanley v. Georgia,
394 U. S. 557 (1969)........................................................................ ....................... .... ..13
Cheever v. Academy Chicago, Ltd,
690 F. Supp. 281 (S.D.N.Y. 1988) ..............................................................................21
Cherr River Music Co. v. Simitar Entertainment, Inc.,
38 F. Supp. 2d 310 (S.D.N. Y. 1999)............................................................................21
Christopher Phelps & Associate, LLC v. Galloway,
492 F .3d 532 (4th Cir. 2007) .......................................................................................20
ii
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Clif Notes, Inc. v. Bantam Doubleday Dell Publ'g Group, Inc.,
886 F .2d 490 (2d Cir. 1989).........................................................................................19
Clonus Associate v. Dreamworks, LLC,
417 F. Supp. 2d 248 (S.D.N.Y. 2005)..........................................................................20
Cohen v. California,
403 U.S. 15 (1971) ..... ........ ..........................................................................................17
Dynamic Solutions, Inc. v. Planning & Control, Inc.,
646 F. Supp. 1329 (S.D.N. Y. 1986). .................. .......... ................................ ................21
EM! Catalogue Partnership v. Hil, Hollda, Connors, Cosmo pulos Inc.,
228 F .3d 56 (2d Cir. 2000)........ ................................................................... ................19
Eden Toys, Inc. v. Florelee Undergarment Co, Inc.,
697 F .2d 27 (2d Cir. 1982).............................................................................................5
Eldred v. Ashcroft,
53 7 U.S. 186 (2003).. ...... ...................... .......... ........... .... ..... .............. .............................4
Hojheinz v. A & E Television Networks, Inc.,
146 F. Supp. 2d 442 (S.D.N.Y. 2001 )................................................................. 7, 13
Hojheinz v. AMC Products, Inc.,
147 F. Supp. 2d 127 (B.D.N.Y. 2001) .........................................................................23
Inc. v. MercExchange, L.L.c.,
547 U. S. 388 (2007).......................................................... ......................................... ..20
Leibovitz v. Paramount Picture Corp.,
137 F .3d 109 (2d Cir. 1998).... .............. ..... ............. ..................................................... 1 6
LucasFilm Ltd v. Media Market Group, Ltd.,
182 F. Supp. 2d 897 (N.D. Cal. 2002) .........................................................................22
. Mason v. Jews for Jesus,
No. 06 Civ. 6433 (R), 2006 WL. 3230279 (S.D.N.Y. Nov. 8,2006)..................22
Metropolitan-Goldwn-Mayer Studios, Inc. v. Grokster, Ltd,
518 F. Supp. 2d 1197 (C.D. Cal. 2007) ...............................................................20
MyWebGrocer, L.L.C. v. Hometown Information, Inc.,
375 F.3d 190 (2d Cir. 2004)...........................................................................................3
ii
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NXIM Corp. v. Ross Institute,
364 F.3d 471 (2d Cir. 2004).....................................................................................7, 11
New York Times Co. v. Sullivan,
376 U.S. 254 (1964).. ......................................................................................... ......4, 17
New York Times v. Tasini,
533 U.S. 483 (2001) .....................................................................................................21
Oliveira v. Frito-Lay, Inc.,
251 F .3d 56 (2d Cir. 200 1 )...........................................................................................19
Red Lion Broad v. F. C. c.,
395 U.S. 367 (1969) .................................................. ....... ............................................17
Ringgold v. Black Entertainment Television, Inc.,
126 F .3d 70 (2d Cir. 1997)................................... ................................................. .......15
Rogers v. Grimaldi,
875 F .2d 994 (2d Cir. 1989)........................................ .................................................19
Suntrust Bank v. Houghton Mifin Co.,
268 F.3d 1257 (11th Cir..2001) ...............................................................................4, 21
Tom Doherty Associate, Inc. v. Saban Ent., Inc.,
60 F .3d 27 (2d Cir. 1995).........................................................................................3, 20
Twentieth Century Fox Film Corp. v. Marel Enterprises, Inc.,
277 F .3d 253 (2d Cir. 2002).................. .................................................................. .......3
Va. State Board of Pharmacy v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748 (I 976) ....................................................................................................16
Vance v. Universal Amusement Co.,
445 U.S. 308 (1980)...... ....... ....... ................................................................... ................4
Wade Williams Dist., Inc. v. Am. Broad Co., Inc.,
No. 00 Civ. 5002 (LMM 2005 WL. 774275 (S.D.N.Y. Apr. 5,2005).....................12
Woods v. Universal City Studios,
920 F. Supp. 62 (S.D.N.Y. 1996) ................................................................................21
Wrightv. Warner Books, Inc.,
. 953 F .2d 731 (2d Cir. 1991 )................................................ ........................... ..............16
iv
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FEDERA STATUTES
17 U.S. C. § 106.............................................. ............ ................................ ..... .....................6
17 U.S.C. § 107 ..............................................................................................6, 7, 13, 14, 16
17 U .S.C. §§ 304( a)(1 )-(2)...... ...................................... ......... .......................................... ....5
17 U.S.C. 501 (b) ........................................................... .......................................................5
U.S. Const. ar. I, § 8, cl. 8...................................................................................................6
MISCELLANOUS
Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in
Copyright Cases, 48 Duke L.J. 147 (1998) ................................................;............4
Pierre N. Leval, Toward a Fair Use Standard, 103 Har. L. Rev. 1105, 1107,
1110 (1990) ..................................................... ................. ..... .........................................5
v
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PRELIMARY STATEMENT
Defendants Premise Media Corporation, C&S Production LP, Premise Media
Distrbution LP, and Rocky Mounta Pictues, Inc. (collectively, "Defendats") are the
producers and distrbutors of Expelled: No Intellgence Allowed ("Expelled' or the "Film").
Expelled is a controversial film about a highly contentious issue - whether proponents of the
theory of intellgent design are being unaily silenced in academia and beyond. The Film was
released on April 18, 2008 on more than 1,000 screens nationwide.
Plaitiffs Yoko Ono Lennon, Sea Ono Lennon, and Julian Lennon (collectively,
"Plaitiffs") ask ths Cour to issue an injunction that would result in the withdrawal of the Film
in hundreds of theaters across the countr for "desction" or "editig." The basis for ths
extaordi request is the fact Expelled uses fifteen seconds of music from the song Imagine,
wrtten and pedormed by the late John Lennon. Plaitifs demand the deletion of ths fifteen-
second clip on the ground it inges their copyrghts.
Plaitiffs fall well short of meetig the burden necessar to obta the extaordi
injunction they seek. Plaitiffs have not estblished ownership of the copyrghts they assert
because the registration certficates they submit raise signficant ownership questions tht
Plaitiffs do not address. Even if Plaitiffs had established ownership, the use of a smal porton
of a copyrghte work for the purose of criticism and commenta has long been protected by
the fai use doctre. Expelled criticizes the overtly anti-religious message tht Imagine
embodies, both e)(plicitly and by implication, and uses precisely the ten words of the song the
Film needs to make its point. Plaitis also fail to show ireparable han. Lost licensing revenue
is obviously compensable by money damages, and their asserted right to control the use of
Imagine is nothg more th the right to control criticism of the song and the ideas it represents.
Defendants' free spech rights ar at stae here. The injunction Plaitiffs demand would literally
1
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censor debate over an importt public issue, to say nothg of the signficant economic har
that would result were Defendants forced to re-cut the fi in theaters, or on DVD.
Plaitis simply do not meet the very high burden they mus dischage in order to obta
a mandatory injunction tht would silence expressive spech on an issue of national public
importce. Plaitiffs' prelimar injunction motion should be denied.
BACKGROUN
Plaitis assert they own the copyrghts in the composition of Imagine, which was
wrtten by John Lennon in 1971 and has since gone on to receive critical and popular acclai.
See Complait at ~~ 1-3. The origial registration for the copyrghts at isse here identifies
Nortern Songs Limted, a United Kigdom corporation, as the sole owner of
those copyrghts.
See Complait Ex. B. In 1998, Plaitiffs registred renewal rights in the composition. See id Ex.
A.
Defendants are the producers and distrbutors of Expelled, a one hour and th-nie
miute documenta that e)(plores a highy contentious issue - the theory of intellgent design,
and whether proponents of ths theory are being unaily silenced in academia and beyond. See
Declaration of John Sulivan in Opposition to Motion for Prelim Injunction ("Sullivan
Dec.") ~ 7. The film premiered on April 18,2008 on more than 1,000 theater screens nationwide.
See id ~ 22. It ha remaied controversial and importt ever since. A number of states are
considerig legislation that would permt the teachig of intellgent design in classrooms
alongside the theory of evolution. See Declaration of A. Logan Craf in Opposition to Motion
for Prelimar Injunction ("Cra Dec.) ~~ 16-19. The Film plays a central role in the public
debate on ths issue.
As s.et fort in greater detal below, the Film uses a short excerpt of Imagine as par of its
discussion of the intellgent design issue, and the proper role of religion in society. See Sullivan
2
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Dec. iiii 13-21. Specifcaly, the Fil cnticizs, explicitly and implicitly, the anti-religious
message that portons of the song and its lyrcs appear to convey:
Nothg to kill or die for
And no religion too
Sullivan Dec. iiii 13 and 17. The excerpt usd in the Film conta only these ten words and las
fiften seconds. See Id. ii 17. On ths basis, Plaitiffs demad a nationwide injunction agaist
using "any porton" of Imagine for any reason, and "recalling" the Film "for destrction or
editing." See Order to Show Cause at 3-4; PI. Memo at 25.
ARGUMNT
I. Plainti Must Meet An Exceedingly Hi Burden To Obtain A Mandatory
Injuncton That Silences Expressive Speech On An Important Issue Of
Public Concern
A prelimar injunction is an "emaordiar remedy." Twentieth Century Fox Film
Corp. v. Marvel Enters., Inc., 277 F.3d 253, 258 (2d Cir. 2002). A par seekig one "must
demonstrate (1) ireparble har in the absence of
the injunction(,) and (2) either (a) a lielihood
of success on the ments or (b) sufciently senous questions going to the ments . . . and a balance
of hadships tipping decidedly in the movant's favor." See MyWebGrocer, L.L.C. v. Hometown
Info, Inc., 375 F.3d 190,192 (2d Cir. 2004).
Plaitiffs acknowledge the injunction they seek here is paricularly emaordin. See PI.
Memo at 8-9. The injunction Plaitiffs seek would not maita the statu quo, it would upset it
radcaly by forcing defendats to not only pul Expelled out of hundreds of theaters nationwide,
but to delete par of the Fil. Accordigly, Plaitiffs acknowledge the injunction they seek
canot issue uness Plaitiff meet a "heightened stadad" - one tht requies them to mae a
parcularly "clear" and "substtial" showig of likely success on the ments. See Tom Doherty
Assoc., Inc. v. Saban Ent., Inc., 60 F.3d 27,33-34 (2d Cir. 1995); accordPL. Memo at 8-9.
3
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But Plaitis do not acknowledge the other very extordiar aspect of the injunction
they seek. It would silence expressive speech on a controversial issue of great national
importce, and restrct the maner in which the creators of the film are allowed to express
themselves. The injunction Plaitis request therefore has clea and profound free speech
implications. See, e.g., Vance v. Universal Amusement Co., 445 U.S. 308, 315-16 (1980)
("(B)urden of supportg an injunction agait a fue eJdbition (of a motion pictue) is even
heavier than the burden of justifying the imposition of a crial saction for a pas
communcation."); New York Times Co. v. Sullvan, 376 U.S. 254 (1964) (First Amendment
reflects a "profound national commtment to the priciple that debate on public issues should be
unbited, robust, and wide-open").
Ths First Amendment concern does not disappear simply because a copyrght has been
asserted. In the copyrght context Fir Amendment and free speech interests are protected by
the fai use doctre - a critical "First Amendment safegudD" designed to prevent copyrght
law from unduly burdenig free speech. Eldred v. Ashcroft, 537 U.S. 186,220 (2003); see also
Suntrust Bank v. Houghton Mifin Co., 268 F.3d 1257, 1263-65 (11th Cir. 2001). In light of
the
free speech, Firt Amendment and e)(pressive interest fai use protects, cours must be
exceedgly cautious in grantig provisional relief over a colorable fai use defens. See
Campbell v. AcuffRose Music, Inc., 510 U.S. 569, 578, n.1O (1994) (urgig caution agait
injunctive relief over "reasonable contentions of fai use") (internal citations omitted); Suntrust,
268 F.3d at 1265 (reversing prelimar injunction; cour must be cautious in grantig
injunctions over a "colorable fai-use defense"); Mark A. Lemey & Eugene V olokh, Freedom of
Speech and Injunctions in Copyright Cases, 48 DUK L. J. 147 (1998) (prelimar injunctions in
4
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copyrght and trademark cases should be subject to trditiona First Amendment anysis as prior
restrts on speech).
ll. Plaintis Have Not Establihed Likeliood Of Success On The Merits Of
Their Copyriht Infrigement Claims
A. There Is A Signifcant Question Regardig Ownership Of The
Copyrghts Plaintis Asert
Only the legal or beneficial owner of a copyrght has stadig to sue for ingement. 17
U.S.C. 501(b); see Eden Toys, Inc. v. Florelee Undergarment Co, Inc., 697 F.2d 27, 32 (2d Cir.
1982). Whle a pria facie case of ownership is established by presentig a certcate of
registrátion from the United States Copyrght Offce, the certficates presented to the Cour here
create a question about copyrght ownership that Plaitiffs do not address.
The original copyrght registration for Imagine identies Nortern Songs Ltd., a United
Kigdom corpration, as the sole owner of the copyrght. See Complait Ex. B. Whle Plaitiffs
apparently registered renewal rights in the composition in 1998, see Complait at Ex. A, the
renewal rights Plaitiffs clai here would vest autmatically in Nortern Songs Limted - not
Plaitiffs - uness Norter Songs received the origin copyrghts by assignent or license. See
17 U.S.C. §§ 304(a)(I)-(2). Plaitiffs present no evidence that Nortern Songs received the
original rights by assignent or license, as opposed to some other means. Accordigly, Plaitiffs
have not established ownership of the renewal rights they assert here.
B. Defendants' Use Of Imagine Is Protected By Fair Use
Even if Plaitiffs could show a pria facie case of ingement, Defendats' use of
Imagine is protected by the fai use doctre. Fai use is not only essential to protectig free
speech interests, it is also critica to achievig the goals of the Copyrght Act itself by balancing
the need to both protect copyrghted material and "to allow others to build upon it." Campbell,
510 U.S. at 575 (fai use is ''necessar to fufill copyrght's p11ose"); see also Pierre N. Leval,
5
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Toward a Fair Use Standrd, 103 HAv. L. REv. 1105, 1107, 1110 (1990); 17 U.S.C. §§ 106,
107.
In assessing fai use, the Cour is guded by four sttutory factors. See Campbell, 510
U.S. at 577; 17 U.S.C § 107. They are non-exclusive and must be weighed together in light of
the underlyig puroses of copyrght. See Campbell, 510 U.S. at 577-78. Whle they inorm the
fai use analysis, ''te ultiate test of fai use" is whether copyrght's "goal of 'promot(ing) the
Progress of Science and usfu Ars' . . . 'would be better served by alowig the use than by
preventing it.'" Castle Rock Entm't, Inc. v. Carol Publg Group, Inc., 150 F.3d 132 (2d Cir.
1998) (quoting U.S. Const. ar. I, § 8, cl. 8). Here, none of the fai us factors favor Plaitiffs,
and prohibitig the use would frstrate, not serve, the underlyin purose of the Copyrght Act.
1. Purpose And Character Of The Use
The "hear of the fai use inqui" lies in the fist factor - ''te purse and chaacter of
the use." Blanch v. Koons, 467 F.3d 244,251 (2d Cir. 2006); see also 17 U.S.C. § 107(1). The
focus of ths anysis is. the ''tsformative'' natue of the accused work. See Campbell, 510 U.S.
at 579; Bill Graham Archives v. Dorling Kindersley Ltd, 448 F.3d 605, 608 (2d Cir. 2006).
Although ths factor also considers whether the use is commercial in natue, commercial us is
not a dispositive consideration, and "the more tranformative the new work, the less will be the
signficance of other factors, like commercialism." Blanch, 467 F.3d at 254 (quotig Campbell,
510 U.S. at 579).
a. Transformative Purpose
A work is tranformative when it does not "merely supersedeD the objects of the origin
creation," but rather "adds somethg new, with a fuer p11ose or dierent chater, alterig
the fist with new expression, meang, or message." Campbell, 510 U.S. at 569. A work is
presumed to be transformtive where it criticize or comments on the copyrghted work. See,
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e.g., NXIM Corp. v. Ross Inst., 364 F.3d 471, 477 (2d Cir. 2004) (a strong presumption of
trformative p11ose arses where defendants use copyrghted work for p11se of criticism or
commenta); s~e also 17 U.S.C. § 107 (e~ressly identifyg use of a copyrghted work for
"criticism" and "comment" as examples of fai use). Tranformative p11se is not, however,
limted to commenta or crticism. A work is also trformative where it combines copyrghted
e)(pression with origi expression to produce a new creative work. See, e.g., Blanch, 467 F.3d
at 251-52 (fidig fai use where paiter used porton of fason photograph as "foddet' for his
arstic commenta); Bil Graham Archives, 448 F.3d at 608-09 (fidig fai use where Gratefu
Dead concert posters were reproduced in order to ilustrte history of the popu1ar musical group);
Hojheinz v. A & E Television Networks, Inc., 146 F. Supp. 2d 442, 446-47 (S.D.N.Y. 2001)
(fidig fai use where television biography used film clips to ilustrate career).
Here there can be no doubt that Defendants used Imagine for a transformative p11ose,
because the Film criticizes Imagine and the viewpoint it represents. Whle Imagine may have
many layers of meang, its lyrcs suggest an overtly anti-religious message. The fist thee
sta urge the listener to imagine a secu1ar world without Heaven or hell or any religion, and
implies ths is a world where all people can live life in peace and tht without religion "the world
will be as one." See Sulivan Dec. , 14 and Ex. A. The Film critiques that viewpoint expressly.
It uses ten words from the lyrcs of Imagine and the music that accompanes them, all lasti
fieen seconds:
Nothg to kill or die for
And no religion too
See Su1livan Dec. , 17 and E)(. B. As the music plays and these lyrcs appear on the screen with
the words as they're sung, the film shows a series of four video clips tht ilustrate what the
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producers believe to be the fallacy in the worldview Imagine would seem to represent. . As the
Film's producer John Sullivan explais:
The images provide a layered criticism and commenta of the
song buildig upn each other as the music and lyrcs play
underneath. The images demonstrate the social and political
process we the filmakers believe would be requied to actuize
the ideas promoted by Imagine. The fist image is a large circle of
children in a school-sponsred activity in a clasroom followed by
an individua little gil sping in playfl bliss. Ths is followed
by a clip of a Soviet national parade at the height of the Cold War
echoing how these ideas canot be maitaed without realization
in a politiciz form. The fial stock image clip rug over the
song is what we the filmakers believe to be the last step in ths
process, which is a power grb or a move of "might is right," by a
dictator answerig to no one. In ths case we selected the image of
General Secreta of the Communst Par of the Soviet Union,
Joseph Sta.
See Sulivan Dec. ~ 18.
The Film also critiques Imagine implicitly. For several miutes before the Imagine clip,
the Film featues interviews with academics, intellectus and enterters, all of whom suggest
the world would be better off without religion, or at leas with less of
it. See Sullivan Dec. ~~ 19,
20 and Ex. C. Followig the Imagine clip, the Film suggests religion's commtment to
trancendenta values place lits on human behavior, and that societies tht permt "Darsm
to trp all other authorities, including religion" pose a greater theat to hum values. See
Sullivan Dec. ~ 19 and Ex. C. Whle one might properly quael with the suggeston there is a
lin between a secular society and fascism, the Film suggest ths
connection and therefore
presents a qounterpoint to the secular utopia describe in Imagine. The Film also uses Imagine
to trace a chronology. It uses the song to show the secular ideal represented imediately before
the Imagine clip is not a new idea, and fuer suggests it has been tred before with disasous
results.
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In short the Film not only criticizs Imagine and the world
view it represents, it uses
Imagine as tool for explorig the consequences of the secular world it envisions. Accordigly,
the Film does not use Imagine merely to "supersedeD the objects of the original creation" or
avoid the drdgery of creating somethg origi. See Campbell, 510 U.S. at 569,579. The Fil
uses Imagine for the purse of social critique and commenta. Once ths purse is
considered, there can be no doubt the Film "adds somethg new, with a fuer p11ose or
different charcter, altering the fist with new expression, meang, or message." See Campbell,
510 U.S. at 579.
The Second Circuit ha found a tranformative purose based on far less than ths. In
Blanch v. Koons, the Cour found a tranformative p11ose where an arst used a fashion
photograph as "fodder" for fuer social commenta. See 467 F.3d at 251-53. In that cae,
visu arst Jeff Koons copied par of a photograph taen by Andrea Blanch for Allure magaze
and incorporated it into a paiting that was par of his Easyjùn-Ethereal series. Id. at 247. That
paitig, entitled Niagara, "depicts four pais of women's feet and lower legs dagling
promiently over imges of confections - a large chocolate fudge browne topped with ice
cream, a tray of donuts, and a tray of apple dash pastres - with a grsy field and Niagara Falls
in the background." Id. Koons explaied tht by ''juxposing women's legs agaist 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 se)( - are mediated by popular images." Id. Koons explaied tht
he used Blanch's photograph because "cert physical featues of the legs (in the photogrph)
represented for (h 1 a parcular tye of woman frequently presented in advertsing" and "(h)e
considered ths tyicalty to fuer his p11ose of commentig on the commercial images ... in
our consumer cultue." Id at 248.
9
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In afg judgment in favor of Koons on his fai use defense, the Second Circuit
concluded tht his use ófBlanch's photogrph was tranformative because Koons used Blanch's
photograph not simply to repackage it, but "as fodder for hi commenta on the social and
aestetic consequences of mas media." Blanch 467 F.3d at 253. Koons' use was transformative
because he used Blanch's photograph as "raw material" to create a new work with a profoundly
different meang and message by adding new expression to the original photogrph. Id. The
Cour acknowledged tht Koons could have created Niagara without using Blanch's photograph.
See id. at 255. The Cour explaied tht necessity was not the question; the queston was whether
Koons had ariculated a justification for using Blanch's photograph - that "is whether Koons ha
a genuie creative rationa for borrowig Blanch's ime." Id. The Cour observed tht Koons
had arculated such a rationale, and justified his borrowig by showig that using Blanch's
photogrphs "advanced his aristic p11ses." Id
Here, the tranformative p11ose is far more compelling. Jeff Koons provided litte, if
any, diect commenta or criticism of Blanch's photograph; his ma p11ose in using it was to
present a social critique. Expelled uses Imagine to not only present a social critique, it holds
Imagine up for explicit and implicit criticism and discussion, and uses Imagine precisely because
it typifies the viewpoint the Film seeks to criticiz.
In Bil Graham Archives v. Dorling Kindersley Ltd, a publisher reproduced seven
concert posters as par of an ilustated history of the Gratefu Dead. See 448 F.3d at 607. The
book included many other concert posters, but the Bil Grah Archives refued to license the
seven at issue. See id. When the publisher used them anyhow, the Bil Graham Archives sued for
copyrght ingement. See id In afg sumar judgment in the publisher's favor on its
fai use defense, the Second Circuit held that no diect commenta or criticism of the posters
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was necessar to fid a trsformative p11ose. See id at 609. Rather, the cour found a
transformtive p11ose based on the fact the book used the adttedly expressive works as
"historical arfacts" that enhanced and ilusated the history of the band. Id at 609-10. The
Cour also premised its fidig of tranformative p11ose on the ground the book combined the
seven concert posters with lots of other content, and the posters made up less than 0.20% of the
book. See id at 611 ("(We are aware of no case where such an inigncant tag was found
to be an unai use of original materials.").
Here, Imagine makes up a simlarly smal porton of the Film - roughy 0.27%.
Moreover, the Film uses Imagine in a simlar context, to contextize the secular idea
expressed imediately before the clip of Imagine by remidig the reader it has long been par
of popular cultue and imagintion. And ths is to say nothg of the diect commenta and
criticism that creates a "presumption" of trans formtive p11ose. See NXIM, 364 F.3d at 477.
Plaitiffs do not mention Blanch v. Koons or Bil Graham Archives v. Dorling Kindersley
Ltd. Instea Plaitis contend trsformation tu on whether using "copyrghted material was
necessar to the assertd p11ose of criticism (or) comment" and go on to observe tht it was not
strctly necessa to use the clip of Imagine in the Film. See PI. Memo at 17 ( origin emphais).
But necessity is not the test. It was not necessar for Jeff Koons to use the legs and feet from
Andrea Blanch's photograph. He could have simply drawn a pai of women's legs and feet from
scratch. It was not necessar for Dorling Kidersley to use the seven concert posters in the book
it published about the Gratefu Dead. The book contaed scores of other concert posters, and it
is doubtf anyone would have noticed, much less missed, the seven posters at issue. For tht
matter, it was not necessar for 2 Live Crew to make a parody of Roy Orbison's Prett Woman.
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See Campbell, 510 U.S. at 574-75. They still could have made an album fu of other songs.
Criticism is never strctly necessar. You can always remai silent.
Plaintiffs go on to suggest that ths Cour's decision in Byre v. British Broadcasting
Corp., 132 F. Supp. 2d 229 (S.D.N.Y. 2001), somehow demonstrates tht the Film's us of
Imagine is not tranformtive. See PI. Memo at 18-19. But Byrne ha no application here. In tht
case, the BBC recorded fift seconds of a song wrtten by an Irsh political activist and used it as
par of a twenty-miute television news story concerng the arest of four Irsh nationas in
Florida on gu-rug chages. See id. at 234. The song at issue was used as ''teme music" by
a rado program tht was also recorded as par of the news story. The BBC then used a portion of
tht song as one of thee "clean fades," a technque whereby an audio track is used to "ease the
viewer" into a new story segment. See id at 232. The BBC arculated no paricular purse in
using the song, other than the fact par of its story was about a radio program that uses the song
as theme music. Accordingly, the Cour held there was insufcient evidence to fid the BBC's
use of the song transformative. See id at 234-35. Here, there is abundat evidence of
trsformative purose in the form of e)(plicit criticism and social critique.
Plaintiffs next suggest no trsformative purose can be found here because ''te use of
the Song was plaiy to entert rather th to inorm." PI. Memo at 19. That asserton is
contradicted by the content of the Film itslf and by the testiony of the fiakers. It also
reflects a misunderstadig of the law. Once an otherwse trsformative p11ose ha been
shown tht purse is not undermed by the fact a clip ha inerent entertent value. See
Wade Willams Dist., Inc. v. Am. Broad Co., Inc., No. 00 Civ. 5002 (LMM 2005 WL 774275 at
*9 (S.D.N.Y. Apr. 5, 2005) (rejectig the proposition tht ''tere can be no fai use when
copyrghted excerpts are used for entertent" where Good Morng Amerca segment about
12
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portyal of aliens in science fiction films used the clips at issue to critique the films); Hojheinz,
146 F. Supp. 2d at 447 ("It matters not tht the Peter Graves' biography was produced to
entert audiences, because the use made of plaitiffs footage in the progr was for the
purose of commentig on Graves and what he thought about a pictu he appeared in.").
Attempting to pare the distiction between expression and entertent is neither necessar
nor appropriate here. Cf Stanley v. Georgia, 394 U.S. 557, 566 (1969) (for Fir Amendment
p11oses, "(t)he line between the trsmission of ideas and mere entertent is much too
elusive for ths Cour to drw, if indeed such a line can be drawn at all").
Finally, Plaitiffs suggest the Film's use of Imagine was not transformative because there
were "equaly inormative non.inging alternatives." PI. Memo at 19. But the issue here is not
whether the Film could have been made differently. Nor should it be. See Blanch, 467 F.3d at
255 ("It is not, of course, our job to judge the merits of "Niagara," or of Koons' approach to
ar."). The question is whether the Film used the clip of Imagine for a tranformtive purose.
See id Here, the Film uses Imagine for the highly transformative p11ose of criticizg the song
itself and the views it represents, and as fodder for fuer commenta on the consequences of
the idealized secular world the song advocates.
b. Commercial Use
Whe transformation is the hear of the fai use inqui, the Cour must nonetheless
consider the fact Exelled is a commercial film. See 17 U.S.C. 107(1); Blanch, 467 F.3d at 254.
Ths does not disquaify it for fai use protection. On the contrar, Campbell recognd most
fai uses are underten for profit. See Campbell, 510 U.S. at 584. Accordigly, the Cour should
"not give much weight to the fact that the secondar use was for commercial gai." Castle Rock,
150 F.3d at 142. Where, as here, the seconda work is highy transformative, its commercial
natue should receive even. less weight. See Campbell, 510 U.S. at 569 ("(t)he more
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transformtive the new work, the less will be the signficance of other factors, like
commercialsm."); Blanch, 467 F.3d at 254 ("discount(ing)" the commercial natue of the
seconda work in light of its "substtially transformative" natue). Thus, while Expelled is a
commercial fi, that fact is signficantly outweighed by its highly tranformative purse.
Accordingly, the fist factor weighs strongly in favor of defendats here.
2. Nature Of The Copyrighted Work
The second fai use factor focuses on ''te natue of the copyrghted work." 17 U.S.C.
§ 107(2); Bil Graham, 448 F.3d at 612. Plaitiffs report tht Imagine is a creative work and
therefore at the "core" of copyrght protection. PI. Memo at 19 (citing Campbell). Whle ths may
be tre, Plaitiffs ignore the fact the Second Circuit has explaied tht ths factor is of "limted
usefuess" where a creative work is being used for a tranformative purose. Bil Graham, 448
F.3d at 612; see Blanch, 467 F.3d at 257.
Plaitiffs likewise ignore the fact the second fai use factor alo considers whether a work
has been published or not. See Bill Graham, 448 F.3d at 612. The composition at issue here ha
been widely published and the fifteen seconds of it used in the Film is used for a highy
trsformtive p11ose. The second factor therefore receives "limted weight" in ths case. See
id. at 612 (givin second factor "limted weight" where creative work
was put to trformative
use); Blanch, 467 F.3d at 257; see generally Campbell, 510 U.S. at 586 (stting tht the second
factor is not "likely to help much in separatig the fai us sheep from the inging goats" in
cases involVig transformative copying of' 'publicly known, expressive works' ').
3. Amount And Substantiality Of The Porton Used
The thd fai use factor requies the Cour to assess ''te amount and substatiality of the
porton used in relation to the copyrghted work as a whole." 17 U.S.C. § 107(3); see Blanch,
467 F.3d at 257. Whle the Cour must consider both the quaty and quatitY of the porton of
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the copyrghted work tht was used, the central queston is 'Yhether the extent of copyig is
reasonable in light of its purse. See Campbell, 510 U.S. at 586; Blanch, 467 F.3d at 257 (same;
quotig Campbell).
Here the Fil's purose in using Imagine is to hold it up for scrutiy and criticism
insofar as it suggests the world would be better off without religion, and as fodder for fuer
discussion about whether a world without religion is in fact a better place. The porton of
Imagine the Film uses is narowly talored to tht expressive purose. Indeed, the Fil uses
exactly the ten words from Imagine that are pertnent to the film's criticism of Imagine and the
viewpoint it represents. (P. 8, above.)
Ignorig ths, Plaitiffs suggest the thd factor favors them simply because fifteen
seconds is "more th a 'de mis' use." PI. Memo at 20. But the Second Circuit ha explaied
the concept of "de mimis" use is "an inappropriate one to be enlisted in fai use analysis."
Ringgold v. Black Entm't Television, Inc., 126 F.3d 70, 75-76 (2d Cir. 1997).1 Plaitiffs also
suggest the thd factor favors them because the Film uses more of Imagine th is necessar. PI.
Memo at 20. Plaitifs do not suggest how much would be "necessar" here. And necessity is not
the test in any event. The test is whether "the quatity and value of the material used . . . are
reasonable in relaton to the purose of the use." Campbell, 510 U.S. at 586 (emphasis added);
Blanch, 467 F.3d at 257 (sae; quotig Campbell); Castle Rock, 150 F.3d at 144 (quotig
Texaco, 60 F.3d at 926).2
If a use is de minimis, it is not actionable. See Ringgold, 126 F.3d at 80. Fai use is only
implicated once actionable copying is shown, so every fai use inqui involves a use tht is
more than de minimis by defition. See id.
In discussing the thd fai us factor, Castle Rock alo asks whether ''te extent of
copying is consistent with or more th necessary to fuer the p11ose and chaacter of the
use," Castle Rock, 150 F.3d at 144 (quoting Campbell, 510 U.S. at 586-87) (emphasis added),
2
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No mattr how the test is arculated, it is applied in light of the p11ose of the use.
Campbell, 510 U.S. at 586; Blanch, 467 F3d at 257; Bil Graham, 448 F.3d at 613; Castle Rock,
150 F 3d at 144. The Film uses no more of the song th it needs to make its point, and the
amount and substatialty of the use canot be viewed as excessive in light its p11ose. See
Campbell, 510 U.S. at 586. The thd factor therefore favors Defendats.
4. Market Effect
The four factor is "the effect of the use upon the potential market for or value of the
copyrghted work." 17 U.S.C. § 107(4). This factor "requies a balancing of the benefit the
public will derive if the use is permtted" versus "the persona gai .the copyrght owner wi
receive if the use is denied." Bil Graham, 448 F.3d at 613 (quotig MCA, Inc. v. Wilson,
677
F.2d 180, 183 (2d Cir. 1981)); Wright v. Warner Books, Inc., 953 F.2d 731, 739 (2d Cir. 1991).3
a. Substantial Public Interest
The public benefit implicated here is the right to receive inormation on an issue of public
importce. See Va. State Bd of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.
and whether the amount used of the origial work was "no more than necessar" in light of the
purose of
the use. See id (quotig Campbell, 510 U.S. at 588-89) (emphais added). A caefu
readg of Campbell, however, reveas tht the decision uses the word "necessar" only to refer
to the test the Cour of Appeals applied in tht case. See Campbell, 510 U.S. at 587 ("The Cour
of Appeals disagreed, statig . . . 'no more was taen th necessar . . . . ''') 590 ("as to the
lyrcs, we th the Cour of Appeals correctly suggested tht 'no more was taken than
necessar"'). Campbell reversed the Cour of Appeals decision, and held the proper test is
whether "the quatity and value of the material used are reasonable in relation to the p11ose of
the use." Id at 586 (emphasis added). In applyig tht test the Cour emphaized the question is
what is "reasonable" versus "excessive," not what is strctly "necessar." See id at 588-89.
Plaitiffs suggest the four factor is ''te sinle most importt element of fai use." PI.
Memo at 21 (citig Harer & Row Publishers, Inc. v. Nation Enterprises, 471 U.S 539, 568
(1984)). Plaitiffs, however, neglect to mention that Campbell overred Harper & Row on ths
very point and held al factors are to be weighed together. See Leibovitz v. Paramount Picture
Corp., 137 F.3d 109, 113 (2d Cir. 1998); American Geophysical Union v. Texaco, Inc., 60 F.3d
913, 926 (2d Cir. 1994). Indeed, Campbell explaied ''te importce of (the four) factor wil
var, not only with the amount of ha, but alo with the relative strengt of the showig on the
other factors." Campbell, 510 U.S. at 590 n.21.
3
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748, 756-57 (1976) (First Amendment protects the right to receive inormation and ideas as well
as provide them). Several sttes are in the midst of decidig whether to permt the teachig of
intellgent design alongside evolution in the classroom. See Craf Dec. , 42. Ths is an issue of
great controversy (Craf Dec. " 41-42), but that controversy makes the need for unbited
debate even more paramount. See Red Lion Broad v. F.c.c., 395 U.S. 367, 390 (1969)
("(s)peech concerng public afai is more th self-expression; it is the essence of self-
governent") (quotig Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)); Sullvan, 376 U.S. at
270. The free speech interest in unbited debate applies to both the opinon expressed, and the
maner in which one chooses to express it. See Cohen v. California, 403 U.S. 15, 19 (1971)
(Fir Amendment protected the right to express opposition to Vietnam War by wearg jacket
bearg the words "fuck the draf").
An injunction here will stop Defendats from expressing themselves in their chosen
maner on an isse of great public importce, and will prevent would-be viewers of ths film
from receiving Defendants' views uncensored. Accordigly, there is a very substatial public
interest at stae here.
b. No Cognizable Harm
In considerig potential market har, the Cour must consider ha to the markets for
both the song itself and potential licensing markets, while recognzig that "the more
trformatve the seconda use, the less likelihood tht the secondar work substitutes for the
origin." Castle Rock, 150 F.3d at 145 (citig Campbell, 510 U.S. at 591); see Bil Graham, 448
F.3d at 614-15. Not all ha to these markets, however, are cognble. Market ha that arses
from criticism, for ince, is not cognzable because copyrght owners would not be expcted
to license criticism of their work. See Campbell, 510 U.S. at 592.
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Here, Plaitiffs complain about lost licensing revenue. PI. Memo at 21-22. But licensing
revenues "lost" from transfonntive uses are likewise not cognble because copyrght owners
have no nght to these revenues in the fist place. Bil Graham, 448 F.3d at 615 ("Copyrght
owners may not preempt exploitation of transfonntive makets" by chaging licenses for what
would otherwse be fai use) (quotig Castle Rock, 150 F.3d at 146 n. 11). Indeed, Plaitis
assert the sae market har the Bil Graham Archives asserted when it claied tht there was
"an established maket for licensing its images" and tht it would sufer "the loss of royalty
revenue diectly from (the publisher who used the posters) and the opportty to obta royalties
from others." Bil Graham, 448 F.3d at 614; see PI. Memo at 20-22. Tht arguent was rejected
there and should be rejected here as well See Bil Graham, 448 F.3d at 614-15 (fidig no
cognble market har where the use of copyrghted matenal "falls with a trformative
market").
Plaitiffs also suggest maket ha based on the ''wdespread belief that (they) had
licensed the Song (to) Defendats." PI. Memo at 21. Yet Plaitiffs do not explai how ths belief
(even if widely held) presents any cognzable market ha. Nor do they explai why ths
mistaen belief should have any effect on the scope of
Defendats' fai use nghts. If the press is
asserting, falsely, tht Plaitiffs licensed Imagine, the proper solution is to simply correct that
impression. Plaitiffs likewise complai that their abilty to refrain from grantig licenses is
"cntical to the preservation of (John) Lennon's legacy." PI. Memo at 5. But no one ha forced
Plaitis to license anytg and "preserv(in) legacies" is not the point of the Copyrght Act.
The fact is the Copyrght Act permts a varety of unlicensd uses though fai use and it does not
provide an unted right to "preserve legacies."
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Plaitiffs simply have no right to control the use of Imagine for the purse of criticizg
it (Campbell, 510 U.S. at 592) or other transformtive p11oses (see Bill Graham, 448 F.3d at
614-15) and the potential licensing revenue "lost" here was not theirs to demad in the fist
place. See Bil Graham, 448 F.3d at 614-15. There is no cognzable market ha to Plaitiffs
here, and the four factor therefore weighs in favor of Defendats.
In sum, the Film uses Imagine for the transformative p11oses of criticism and social
commenta, uses no more th the 10 words and fiftn seconds of the song pertent to that
purose, and presents no cognble market har. Accordigly, Plaitiffs are unikely to prevail
over Defendants' fai use defense.4
m. Plaintis Cannot Show Irreparable Harm And The Balance Of Hardships
Tips Strongly In Favor or Defendants
A. Plaintis Fail To Show Irreparable Harm
Plaitiffs suggest tht ireparable har may be presumed upon. a showig of a lielihood
of success on the merits of their Copyrght Act clais. See PI. Memo at 11. However, Plaitiffs
have shown no such likelihood (par II, above) and even if they had, they are entitled to no such
presumption.
4 Plaitiffs do not seek an injunction on their Lan Act clai. Nor could they. The law
is well-setted that sound recordigs - even those of legenda arsts such as the late John
Lennon - do not serve as protectable indicators of source under the Lan Act. See, e.g., EM!
Catalogue P'sÍip v. Hil, Hollda, Connors, Cosmo pulos Inc., 228 F.3d 56, 63 (2d Cir. 2000)
(rejectig arguent that famous sound recordig fuctioned as a trademark for itself; "Copyrght
law, not trademark law, is the priar vehicle for protectig the rights of a song's composer or
her successor in interest in the musical composition''); Oliveira v. Frito-Lay, Inc., 251 F.3d 56
(2d Cir. 2001). Even if sound recordings could create actionable association, Firt Amendment
considerations would bar the clais. See Rogers v. Grimaldi, 875 F.2d 994, 998-99 (2d Cir.
1989) ("in general the (Lan) Act should be constred to apply to arstc works only where
the public interest in avoidig consumer confion outweighs the public interest in free
expression"); Clif Notes, Inc. v. Bantam Doubleda Dell Publg Group, Inc., 886 F.2d 490,495
(2d Cir. 1989).
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In eBay, Inc. v. MercExchage, L.L.C., 547 U.S. 388 (2007), the United States Supreme
Cour held presumptions in favor of injunctive relief are improper. See id. at 390-393. In,
cours must apply trditiona priciples of equity when considerig injunctive relief, which
requies an actu showing of ireparable injur absent an injunction. See id Followig eBay,
Plaitiffs must show, not presume, ireparable har. Notably, all of the cases Plaitis cite in
support of their presumption arguent pre-date the eBay decision. Plaitiffs also fai to cite ths
Cour's decision in Canon Inc. v. GCC Intl, Ltd, 450 F. Supp. 2d 243, 251-52 (S.D.N.Y. 2006)
(applyig traditional rues of equity to a par's request for prelim injunctive relief in light
of eBay), affd, 2008 WL 213883 (2d Cir. Jan. 25, 2008). Lower cours have correctly proceeded
to apply e-Bay's rue to copyrght cases. See Christopher Phelps & Assoc., LLC v. Galloway,
492 F.3d 532, 543 (4th Cir. 2007); Metro-Goldwn-Mayer Studios, Inc. v. Grokster, Ltd, 518 F.
Supp.2d 1197, 1212-14 (C.D. Cai. 2007).
Ireparble ha is defied as an injur tht is not remote or speculative but actual and
iment, and for which a moneta award canot be adequate compensation. Clonus Assoc. v.
Dreamworks, LLC, 417 F. Supp. 2d 248, 260 (S.D.N.Y. 2005) (citig Tom Doherty Assocs. v.
Saban Entm't, Inc. 60 F.3d 27, 37 (2d Cir. 1995)). A par requestig prelim injunction
must show that ireparble injur is not merely possible, but that it is likely. Clonus Assoc., 417
F. Supp. 2d at 250 (citig Jackson Dairy, Inc. v. H.P. Hoods & Sons, Inc., 596 F.2d. 70, 72 (2d
Cir. 1979)).
In attemptig to show ireparable ha, Plaitiffs fist complai about "negative press"
they received, includg accustions from Internet bloggers tht Plaitiffs "sold out" the legacy
of John Lennon by permtting it to be used in the Fil. PI. Memo at 6, 12; Ono Dec. " 11-12.
But that negative press was the result of false accusations by Internet bloggers, which were
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corrected in any event. See Ono Dec. Ex. A (Wall Street Joural story statig filmakers did not
have permssion to use the song). Any har those false accustions created was incted by the
authors of them, not Defendats, and Plaitiffs fail to explai how the injunction they request
would undo that har in any event.
Second, Plaitiffs complai that their right to refuse licenses is being usured. PI. Memo
at 12-14; Ono Dec. ~ 17. But agai, no one is forcing Plaitiffs to grt a license; the Copyrght
Act permts many unlicensed uses, and Plaitis' copyrghts in Imagine however valuable they
are, do not give them right to preclude all uses of Imagine. See Bill Graham, 448 F.3d at 614. In
any event, al of the cases Plaitis cite on ths issue deal with piracy and the copyig of entie
works. See Dynamic Solutions, Inc. v. Planning & Control, Inc., 646 F. Supp. 1329 (S.D.N.Y.
1986) (computer softare company unawfy using the Plaitiffs' entie copyrghted softare
program); Cherry River Music Co. v. Simitar Entm't, Inc., 38 F. Supp. 2d 310 (S.D.N.Y. 1999)
(diect copyig of Plaitis musical recordigs onto CD to be distrbuted for sale); Woods v.
Universal City Studios, 920 F. Supp. 62, 65 (S.D.N.Y. 1996) (direct copying of an arist's
drawig in a purely commercial movie); Cheever v. Academy Chicago, Ltd, 690 F. Supp. 281
(S.D.N.Y. 1988) (direct copying of all of author's unpublished works prior to unauthoried
distrbution by defendat). Ths is a case about fai use of a smal porton of Imagine in an
expressive work. Tht is a crucial diction. Unlike pircy cases, there can be no presumption
of ireparable ha where the alleged inger has a bona fide fai us defense. Suntrst Bank v.
Houghton Mifin Co., 268 F.3d 1257, 1265, 1276 (11th Cir. 2001) (citi Campbell, 510 US. at
578 n.lO; New York Times v. Tasini, 533 U.S. 483 (2001)). .
Plaitiffs have simply shown no ireparable ha here, much less any th would be
sufcient to just the emaordi injunction they seek.
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B. The Balance of Hardships Weigh Heavly in Defendants' Favor
Even if Plaitis could show senous questions on the ments and ireparable ha the
balance of hardships tips strongly in favor of Defendants here.
Plaitis suggest the injunction they seek would merely "inconvenience" Defendants and
create nothg more than an "economic loss." Pi. Memo at 14. That is plaiy false. An
injunction agait the film would chil the Defendants' consttutional nght to free speech,
causing even greater and more ireparable har to them. See CBS Inc. v. Davis, 510 U.S. 1315,
1318 (1994) (holdig plaitis claim that the public aig of a newscas would cause it
ireparable injur by publicly dissemiating its confdential and propneta practices and
processes must yield to the protections of the Firt Amendment); Mason v. Jews for Jesus, No.
06 Civ. 6433 (R), 2006 WL 3230279, at *5 (S.D.N.Y. Nov. 8, 2006) (denying prelim
injunction where plaitiff a comedian, sued a religious group for using his image in a pamphlet
for their organtion in a comic maner because the pamphlet was both protected speech and a
matter of public interest, and "the proposed restrction of Defendant's constitutionaly protected
speech causes the balance of hadships to favor Defendant.,,); see also LucasFilm Ltd v. Media
Market Group, Ltd., 182 F. Supp. 2d 897 (N.D. Cal. 2002) (considerig defendant's First
Amendment rights in balancing of the hars in a copyrght case and denyig injunctive relief).
If ths injunction issues, the Film will be unvailable for at least four weeks. Craf Dec.
~ 35. Puttg aside the hundreds of thousds of dollars it would cost to recut the fi and
reprit it (see Cra Dec. ~ 37), the re-release of the Film would occur at the height of the
sumer movie season - a tie durg which screen space wi be much more diffcult, perhaps
impossible, to secure, especially as interest in the film dishes durg the intervenig weeks.
See Craf Dec. ~ 36; Rodgers Dec. ~ 12A. Even if theaters are stil willing to show the Fil in the
sumer season, the Film will have lost the benefit and momentu of its multi-millon dollar
22
Case 1:08-cv-03813-SHS Document 30 Filed 05/15/2008 Page 28 of 30
advertising campaign. See Craf Dec. , 36; Rodgers Dec. , 12B. Tht momentu canot be
regaied at any price. See id Accordigly, the number of people who ultiately see ths Film
will be reduced if ths injunction issues. Tht is not only an economic har in the form of
reduced ticket sales, it is agai a free speech har, ths time to the public. (p. 17- 1 8, above.)
Ths har wil only multiply if the Dvn release of the Film is enjoined. Defendats plan
to release the Film on Dvn in October 2008 for two reaons. See Craf Dec. , 33. First, Dvn
sales are stronger when the Dvn release follows closely on the heels of the theatrca ru.
Second, Defendats want the Dvn releae to coincide with the fall election cycle due to the
political controversy that surounds ths issue. See Cra Dec. , 34. In order to make an October
2008 release, the Film must be fiizd by end of May of 2008. If Defendats are forced to re-
cut the Film (agai at great e~nse), the four weeks it will tae to re-cut the Film wil alost
certy cause Defendants to miss the October 2008 releae date. See Cra Dec. , 33.
The commercial interests alone are, sufcient to show the balance of hardships tips
agaist an injunction. See Hojheinz v. AMC Prods., Inc., 147 F. Supp. 2d 127, 141 n.13
(B.D.N.Y. 2001) (holding plaitiff
widow offormer film producer could not obta a prelimar
injunction agaist televised aig of documenta of her husband's work because Defendant
spent over $400,000 producin the fialed documenta, submitted it for award consideration,
and therefore such an injunction "would ireparably injure their commercial investment in the
Documenta."); Caterpilar Inc. v. Walt Disney Co., 287 F. Supp. 2d 913,923 (C.D. 11.2003)
(Defendats would lose benefits of its ongoing marketing campaign promotig film and would
have to mount another more expensive campaign to reørelease film). Once the First Amendment
and free expression rights of Defendants - and the public - are considere, there can be no doubt
the balance of hadships tips dramatically in Defendats' favor.
23
Case 1:08-cv-03813-SHS Document 30 Filed 05/15/2008 Page 29 of 30
CONCLUSION
Plaitiffs have not met their high burden they must susta here. Their motion for a
prelimar injunction should be dened.
Dated: New York, New York
May!! 2008
Of Counsel:
Roy W. Hardi (adttd pro hac vice)
April R. Terr (admtted pro hac vice)
LOCK LORD BISSELL & LIDDELL, LLP
2200 Ross Avenue, Suite 2200
Dalas, Texa 75201
(214) 740-8000 Telephone
(214) 740-8800 Facsimle
Emal: rhardi~lockelord.com
ater~lockelord.com
Respey submitted,
yF
Jule Ahe
Center for et andS
STANORD L W SCHOOL
559 Nathan Abbott Way
Staord, CA 94305-8610
(650) 736-9050 Telephone
(650) 723-4426 Facsime
Emal: Anthony.Falne(ßstaord.edu
Ju1ie.Ahens~staord.edu
Alen C. Wasserman (A W-4771)
Gregory T. Casento (GC-5273)
LocKE LORD BISSELL & LIDDELL, LLP
885 Thd Avenue, 26th Floor
New York, NY 10022
(212) 947-4700 Telephone
(212) 947-1202 Facsime
Email: awasserm~lockelord.com
24
Case 1:08-cv-03813-SHS Document 30 Filed 05/15/2008 Page 30 of 30
