Texas Trademark Lawyer Tamera Bennett

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"Imagine" Not Clearing That Song

by Tamera H. BennettApril 30, 2008

The documentary Expelled (see my post earlier) released on April 18, 2008 had and still has some legal wrangling regarding content.

Four days before the theatrical release, the producers of the film filed a declaratory judgment action in the Northern District of Texas after receiving a demand letter from XVIVO, LLC claiming certain animation in the film infringed XVIVO's copyright.

A week after the film's release Yoko Ono, John Lennon's sons and EMI Blackwood Music, Inc. (publishing administrator) sued Premise Media Corporation, LP for copyright infringement for use of the lyrics to "Imagine."

The complaint states: ...The Film prominently featured the use of John Lennon's recording of [Imagine] together with reproduction, by subtitle, of a portion of the lyrics of [Imagine] on the screen.

The wording in the complaint at first leads you to believe the plaintiff's are asserting a claim for copyright infringement of the master recording, along with copyright infringement for the use of the song. But, the master issue is not raised again.

Also of interest is a claim for Lanham Act violations of 1125(a). The complaint reads: The name "Imagine" is distinctive and arbitrary and has acquired secondary meaning. "Imagine" is entitled to protection from misappropriation and from use on unauthorized goods and products.

Premise's answer is not yet due, but the press release from Premise and a review of other reports, show Premise is claiming the use of 10 words from the lyrics of "Imagine" are for commentary purposes and fall within the defense of fair use under the copyright act.

On a footnote.... the copyright nerd in me thought it was pretty cool to see the copyright registration filed for "Imagine" which was attached to the Ono Lennon complaint.

Premise Media Corporation, LP v XVIVO, LLC Northern District of Texas April 14, 2008 3-08CV0639-D

Ono Lennon v. Premise Media Corporation Southern District of New York April 24, 2008 08-CV-3813