New York Supreme Court Rejects EMI's Bid to Enjoin Expelled

Two months ago, a Manhattan federal court rejected Yoko Ono Lennon's attempt to enjoin the further showing and distribution of Expelled: No Intelligence allowed on the ground that film used fifteen seconds of the John Lennon song Imagine.

EMI Records filed a nearly identical claim in state court based on the film's use of the sound recording, and demanded a nearly identical injunction. We're happy to report the state court has now denied EMI's request for an injunction.

The state court's order is particularly important because it establishes that fair use applies to the use of sound recordings under common law copyright, and rejects the insane conclusion of the Sixth Circuit in Bridgeport Music v. Dimension Films that there is no such thing as de minimis use when it comes to sound recordings.

Read the full order here.


Bridgeport is a straightforward interpretation of section 114(b) of the Copyright Act (an inaccurate reading in the opinion of most, but still), so I don't see what support the plaintiffs thought it might offer a pre-1972 recording that is completely outside of the purview of the statute. In the end, isn't this just dicta indicating that this particular court isn't inclined to take the position of the Sixth Circuit in cases involving sampling of copyrighted sound recordings? I agree that's a good sign, but see Fharmacy Records v. Nassar, 248 F.R.D. 507 (E.D.Mich. Mar 31, 2008) for the other side of this coin.

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