Fair Use Defense Ruled "Likely to Prevail" in "Imagine" Copyright Infringement Suit

This case builds on the Second Circuit's groundbreaking 2006 case, Bill Graham Archives v. Dorling Kindersley Ltd., in which the Second Circuit noted that "courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest." In the current case, a bevy of interesting facts give rise to a good example of the balancing act that informs fair use -- the notorious four factors that are "weighed together, in light of the purposes of copyright." In the opinion, the judge explores reasons that the 15-second sample might not be a fair use, such as the fact that film is a commercial work, and that the "Imagine" excerpt could be qualitatively significant as "the heart" of the copyrighted work. But the judge ultimately finds that the arguments for fair use are likely to prevail because the film uses the "Imagine" sample to engage in dialogue with the song's message -- an act the judge describes as transformative.

The fair use defense protects speech when that speech includes the use of a copyrighted work, behavior which EFF believes to be increasingly valuable in an environment saturated with media and empowered with the tools to cut, comment, and play with media.

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