Imagine a Wonderful World: transformation in purpose and form

Bill Patry has posted on the recent, correct fair use finding in the lawsuit Yoko Ono brought against the producers of the anti-evolution movie Expelled. This is the core of the finding that the use was transformative, though the song and the recording themselves were copied: Defendants “put the song to a different purpose, selected an excerpt containing the ideas they wanted to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate about the role of religion in public life.” That is, by showing images of totalitarian societies along with lyrics expressing a utopian desire to see religion removed from public life, the movie suggests that the utopia of Imagine is, in fact, a dystopia.

What interests me is that there is precedent from the SDNY—albeit in dicta—that such ironic contrasts are not fair use because a licensing market exists for them. In Abilene Music Inc. v. Sony Music Entertainment, Inc., the court stated,

it bears emphasis that The Forest's alteration of the tone, lyrics and musical features of Wonderful World makes clear that the song itself is a target of parodic criticism, and that the creators of The Forest are not merely using the original song as an ironic or satirical device to comment on what they view as a less than wonderful world. The latter kind of use, which typically requires licensing, can be illustrated by the song's use in certain films. For example, in Terry Gilliam's 12 Monkeys, the Armstrong recording of Wonderful World is played over the final credits, ironically contrasted with the film's depiction of a distinctly dystopian science fiction future, and in Barry Levinson's Good Morning, Vietnam, the song is played on the sound track accompanying scenes of wartime violence and destruction. In these cases, the original song itself is used (essentially in its entirety) to comment on negative aspects of the real or imagined worlds depicted by the filmmakers, but the song itself is not parodied.

Though the court in the Expelled case says that it’s not influenced by the filmmakers’ explanation of their intent to criticize John Lennon’s Imagine, it is hard to see what the difference is, in themselves, between Expelled and 12 Monkeys in their use of a utopian song contrasting with a dystopia, both of which can easily be read as commentary on the naivete of the original songs. One is more specific—Imagine critiques religion, while Wonderful World just says life is beautiful—but both express sentiments that are legitimate targets of criticism. Yes, literary critics could probably distinguish the two uses, but is that what we want our courts to do? As literary critics, courts are often excellent lawyers.

The Abilene Music court seems to want “transformation” to take place on the music and lyrics of the song itself, while the Ono court accepts, as the Second Circuit latterly held, that transformation is actually a matter of purpose and not a matter of creating a derivative work. Tony Reese’s forthcoming piece on this shift in the meaning of transformativeness proved prescient in this case. While helping with the problem of the transformative/derivative line, transformation-as-purpose foregrounds a different problem: How do you know what the appropriate purpose of the original is? John Lennon's purpose can, perhaps, be defined as the promotion of the message in the original, but there are many other copyright owners whose purpose could credibly be: make as much money, by licensing as many variants, as possible. The original work, like a Swiss Army knife, could be multipurpose.