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202  Why does the fringed lid thus lie Moveless o'er her radiant eye? Why so colorless her cheek? Tell us why she does not speak— Why comes not her gentle breath? Ina is the bride of death!

Withered is the orange wreath— Cold the forehead underneath! Come, false bridegroom, who hath fled— Come, and look upon the dead! All your terrors naught avail— Heart is still and bosom pale! Wail and moan! you can not save— Ina slumbers in the grave!

were sitting in the starlight, by the gliding river's side— He, a spirit pure and earnest—I, his sacred spirit-bride— Sitting in the holy starlight falling from the jeweled sky O'er the water just beneath us, flowing bright and silent by. There was something dim and dreamy, and so solemn in the air, And the earth was lying sweetly in her slumber still and fair; And her breath had grown so quiet that a fold it did not stir Of the green luxurious curtain drooping graceful over her. Silent dew and silent starlight, silent earth and silent sky— All was hushed save one faint murmur of the river flowing by— And one low, dear tone of music, whispering in my thrilling ear, Words so dreamlike in their beauty, that my soul could only hear; Words so eloquent and gentle, that I never may forget— They are ringing in sweet melody within my spirit yet!


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 John Šípek and Dr. J. F. Smetánka. The toastmaster was John A. Červenka, chairman of the convention.

The following morning the delegates met for business at 10 o’clock in the morning. The committee on pernament organization recommended for permanent president of the convention John A. Červenka and for vice-presidents Václav Bureš, M. Zeman, Joseph Domek and Rudolf Pilnáček; John A. Sokol was recommended for secretary, Milan Getting, Alois Jalovec an Jos. Kubíček for assistant secretaries; Paul Kvorka for treasurer. These recommendations were unanimously approved.

The report of the committee on rules contained little of special interest, except the provision that both English and Czech or Slovak might be used on the floor; it was interesting to note that the great majority of the delegates preferred to speak in English.

The committee on resolutions submitted quite a number of resolutions for the approval of the congress, some of them of routine nature, others of considerable significance. A telegram of loyalty was sent to Vice-President Marshall and a letter of greetings and congratulations was ordered sent to Prague to the Czechoslovak Press Bureau. Upon recommendation of the committee on resolutions the congress instructed the secretary to ask Secretary Redfield of the Department of Commerce to send as soon as possible a trade mission to Bohemia for the purpose of gathering information on the trade opportunities between the American and the Czechoslovak Republics. The reports of the committees on Ways and Means and on By-Laws were discussed together. The Ways and Means Committee estimated that the maintenance of the office and the expenses of the work which the proposed Chamber of Commerce should undertake would amount to about $20,000 a year, and figuring on that basis proposed definite membership fees for various classes of members. This matter produced considerable discussion and after having been referred back to the committee it was finally left for final determination by the Board of Directors. The only definite action taken by the Congress was to vote that local Chambers of Commerce and similar societies, such as have already been organized in Chicago, New York, Baltimore and elsewhere, should become members of the national organization by paying $2 for each member. Out of the usual provisions found in the By-Laws of Chambers of Commerce the most significant was the decision to have a board of 21 directors upon whose ability and efficiency the success of the new chamber of commerce will depend. A nominating committee canvassed very carefully the names of all the delegates and brought in a report which was adopted without discussion, as every delegate felt that the recommendation of the committee was most carefully drawn. The convention having decided previously that the headquarters of the Czechoslovak Chamber of Commerce of America should be in Chicago, seven of the 21 directors, that number being a quorum, are residents of Chicago. They are: John R. Červenka, James F. Štěpina, Frank G. Hajíček, John A. Sokol, Andrew Schustek, John Kubíček and Paul Kvorka. Pennsylvania is represented by Michael Bosak and Albert Mamatey, Maryland by J. Civiš and A. J. Švejda, New York by Thomas Čapek and Albert Hlaváč, Connecticut by A. S. Ambrose, Ohio by F. J. Vlček, John Pankuch and Chas. C. Chapp, Nebraska by Václav Bureš, Texas by Method Pázdral and Michigan by J. F. Eliáš. This Board of Directors was divided into three classes, Bosák, Hajíček, Schustek, VIček, Hlaváč, Eliáš and Červenka, serving for one year; Pázdral, Sokol, Civiš, Ambrose, Bureš and Kvorka for two years, and Štěpina, Pankuch, Čapek, Švejda, Mamatey, Chapp, Kubíček for three years.

The elections concluded all the business before the Congress, and at six o’clock on Tuesday, February 4th, the chairman adjourned the meeting sine die. The Board of Directors met immediately after and organized itself by electing John Červenka chairman, Albert Mamatey and Václav Bureš, vice-chairmen, John Sokol, secretary, Andrew Schustek financial secretary and James F. Štěpina treasurer.

The American Czechoslovak Commercial Congress gave the necessary impulse and set into motion the machinery needed to create business ties between the American and Czechoslovak Republics. A good start has been made; all depends on the efforts of the Board of Directors and on the way in which their work will be received and backed by American business men of Czechoslovak descent and by the entire Czech speaking body of American citizenship. Those who attended the convention left Chicago full of confidence that the work begun there would bear fruit.

American Y. M. C. A. has sent to Prague a carload of motion picture films and a staff of secretaries to carry on the noble work of the Y. M. C. A. among the soldiers and the new republic. Among the secretaries is also Rev. Ludvík Burian of New York. They received a cordial welcome from Mr. Klofáč, minister of national defense.

How times change! Slovaks who used to be treated by the Magyars as serfs now laugh at the following joke: A doctor was consulted by a Magyar who complained of stomach troubles. The doctor said: “You must do more exercise. I would recommend that you take a walk three times each day around Magyarorszag (the Magyar state).”

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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  will be the value, in present money, of the assurance of one pound on the same life or lives. (63)

82. Ex. 1. What is the present value of L. 1, to be received at the end of the year, in which a life now 50 years of age may fail?

The rate of interest being 5 per cent. the value of the perpetuity is 20 years purchase, and that of the life 11·66; the answer therefore is $$\frac{20-11{\cdot}66}{20+1} = \frac{8{\cdot}34}{21} = \text{L. } 0{\cdot}397143$$. And if the sum assured were L. 1000, the present value of the assurance would be L. 397, 2s. 10d.

83. When the term of a life assurance exceeds one year, its whole value is hardly ever paid down at the time that the contract is entered into, but, in the instrument (called a Policy) whereby the assurance is effected, an equivalent annual premium is stipulated for, payable at the commencement of each year during the term, but subject to failure with the life or lives assured.

84. But by reasoning as in No. 74, it will be found, that an annual premium payable at the commencement of each year in the whole duration of the life or lives assured, will be worth one year’s purchase more, than an annuity on them payable at the end of each year; and, consequently, that if the value in present money of an assurance on any life or lives, be divided by the number of years purchase an annuity on the same life or lives is worth, increased by unity, the quotient will be the equivalent annual premium for the same assurance.

85. Ex. 2. Required the annual premium for the assurance of L. 1, on a life of 50 years of age.

In No. 82, the single premium for that assurance was shown to be 0·397143, and the value of an annuity on the life is 11·66, therefore, by the preceding number, the required annual premium will be $$\frac{0{\cdot}397143}{12{\cdot}66} = {\cdot}0313699$$ for the assurance of L. 1; and for the assurance of L. 1000, it will be L. 31, 7s. 5d.

86. Ex. 3. Let both the single payment in present money, and the equivalent annual premium be required for the assurance of L. 1, on the joint continuance of two lives of the respective ages of 45 and 50 years.

The value of an annuity of L. 1 on the joint continuance of these two lives, appears by Table VII. to be L. 9·737, therefore $$\frac{20-9{\cdot}737}{20+1} = \frac{10{\cdot}263}{21} = \text{L. } 0{\cdot}488714$$ is the single premium, and $$\frac{0{\cdot}488714}{10{\cdot}737} = \text{L. } 0{\cdot}0455168$$, the equivalent annual one for the assurance of L. 1 to be paid at the end of the year, in which that life becomes extinct which may happen to fail the first of the two.

Therefore, if the sum assured were L. 500, the total present value of the assurance would be L. 244, 7s. 2d. and the equivalent annual premium L. 22, 15s. 2d.

87. Ex. 4. Let both the single and the equivalent annual premium be required for the assurance of L. 1, on the life of the survivor of two persons now aged 40 and 50 years respectively.

The value of an annuity on the survivor of these two lives was shown in No. 66, to be 15·066, therefore, by No. 81, the single premium will be $$\frac{20-15{\cdot}066}{20+1} = \frac{4{\cdot}934}{21} = \text{L. } 0{\cdot}234952$$; and by No. 84, the annual one will be $$\frac{\text{L. } 0{\cdot}234952}{16{\cdot}066} = \text{L. } 0{\cdot}0146242$$.

That is, for the assurance of L. 1 to be received at the end of the year, in which the last surviving life of the two becomes extinct.

Therefore, for the assurance of L. 5000, the single premium will be L. 1174, 15s. 2d. the equivalent annual one L. 73, 2s. 5d.

88. Ex. 5. What should the single and equivalent annual premiums be for an assurance on the last survivor of three lives, of the respective ages of 50, 55, and 60 years.

The value of an annuity on the last survivor of them, was shown in No. 68, to be 14·001, the single premium should therefore be $$\frac{20-14{\cdot}001}{20+1} = \frac{5{\cdot}999}{21} = \text{L. } 0{\cdot}285666$$, and the annual $$\frac{\text{L. } 0{\cdot}285666}{15{\cdot}001} = \text{L. } 0{\cdot}0190431$$, for the assurance of L. 1, to be received at the end of the year, in which the last surviving life of the three may fail.

For the assurance of L. 2000, the single premium would therefore be L. 571, 6s. 8d. the annual one L. 38, 1s. 9d.

89. Lemma. If an annuity be payable at the commencement of each year, which some assigned life or lives may enter upon in a given term; the number of years purchase in its present value, will exceed by unity the number of years purchase, in the present value of an annuity on the same life or lives for one year less than the given term, but payable as annuities generally are, at the end of each year.

Demonstration. Since the proposed life or lives can only enter upon any year after the first, by surviving the year that precedes it; the receipt of each of the payments after the first, that are to be made at the commencement of the year, will take place at the same time, and upon the same conditions as that of the rent for the year then expired of the life-annuity, for a term one year less than the term proposed: this last mentioned annuity, will therefore, be worth in present money, just the same number of years’ purchase as all the payments subsequent to the first, which may be made at the commencements of the several years.

And, since the first of these is to be made immediately, the present value of the whole of them, will evidently exceed the number of years purchase last mentioned, by unity, which was to be demonstrated.

90. If, while the rest remains the same, the payment of the annuity which depends upon the assigned life or lives entering upon any year, is not to be made until the end of that year; as the condition upon which every payment is to be made, will remain the same, but each of them will be one year later; the only alteration in the value of the whole, will arise from this increase in the remoteness of payment, by which it will be reduced in the ratio of L. 1, to the present value of L. 1, receivable at the end of a year (2).


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  of justice require a stay of the action against Zeltser pending his release from prison in Belarus, subject to the following conditions: (1) defense counsel is under a continuing obligation to make reasonably diligent efforts to search for and to produce the documents that this Court ordered produced to plaintiffs’ counsel in the OSC dated April 21, 2008; (2) defense counsel shall submit a letter every thirty days to plaintiffs’ counsel and the Court regarding the status of Zeltser’s detention in Belarus; and (3) immediately upon Zeltser’s release from detention in Belarus, or as soon thereafter as is reasonably possible, defense counsel shall confer with plaintiffs regarding lifting the stay in this action.

The Court finds that the stay will not prejudice any of the parties to this action, or disserve the public interest in any way. Rather, the entry of a stay ensures that plaintiffs’ claims against Zeltser will not be litigated in his absence.

Finally, the Court notes that the instant decision relates solely to defense counsel’s motion to dismiss on jurisdictional grounds, his request to conduct jurisdictional discovery, and plaintiffs’ request for a stay of the action against Zeltser. Nothing in this decision should be construed as bearing on the underlying merits of plaintiffs’ claims. In this regard, the Court notes that defense counsel’s May 21, 2008 letter refers to, and includes as an attachment, an order recently issued by a court in the Republic of Georgia, wherein, according to defense counsel, the court has appointed defendant Kay as “executor of the estate” at issue here. (See Hoffman’s May 21, 2008 Ltr. at 1.) The order from the Georgian court does not alter this Court’s conclusion as to the narrowly defined jurisdictional issues presented in the instant motion, and the Court takes no position as to the order’s bearing, if any, on the underlying merits of plaintiffs’ claims in this action.

Moreover, the instant decision should not be construed as conveying this Court’s sanction of the extremely troubling circumstances and conditions of Zeltser’s confinement in Belarus. Rather, this decision merely sets forth the Court’s legal conclusions regarding the two issues—namely, the sufficiency of service and personal jurisdiction—raised by defense counsel’s motion and plaintiffs’ request for a stay.

For the foregoing reasons, the Court denies Zeltser’s defense counsel’s motion to dismiss this action and his request to conduct expedited discovery. In addition, the Court hereby orders a stay of the action against defendant Zeltser pending his release from prison in Belarus.

SO ORDERED.


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SIDNEY H. STEIN, District Judge.

The widow and children of John Lennon bring this action against the producers of a current movie that plays fifteen seconds of the song “Imagine” without permission of the plaintiffs, who own the copyright to the song. The Lennons have moved for a preliminary injunction prohibiting the continued distribution of the movie in its present form and a recall of the existing copies. That motion is denied because plaintiffs have failed to meet the standard required for a court to grant a preliminary injunction. They have not shown a clear likelihood of success on the merits because, on the basis of the current record, defendants are likely to prevail on their affirmative defense of fair use. That doctrine provides that the fair use of a copyrighted work for purposes of criticism and commentary is not an infringement of copyright.

More specifically, plaintiffs seek a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 enjoining defendants Premise Media Corp., L.P., C&S Production L.P. d/b/a Rampant Films, Premise Media Distribution, L.P., and Rocky Mountain Pictures, Inc., from further distributing their movie, “EXPELLED: No Intelligence Allowed” (the “movie”), in its present form and to recall the copies of the movie that are currently being exhibited.

Yoko Ono Lennon, Sean Lennon, and Julian Lennon are, respectively, the widow and sons of the late John Lennon, the composer of “Imagine,” and the renewal claimants for the copyright registration to the music and lyrics of “Imagine” (the “song”). EMI Blackwood Music, Inc. is the song’s publishing administrator. (Compl. ¶¶ 1-4.) Defendants are the producers and distributors of “Expelled,” a recently commercially released movie that concerns the theory of “intelligent design.” Plaintiffs allege that defendants’ use of an approximately fifteen-second excerpt of “Imagine” in “Expelled” without plaintiffs’ permission infringes their copyright in “Imagine.”

I. HISTORY OF THIS ACTION

Plaintiffs filed the complaint in this action in late April 2008, alleging claims of copyright infringement pursuant to 17 U.S.C. § 501 and trademark infringement pursuant to Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Plaintiffs subsequently brought the present motion by order to show cause dated April 30, 2008. That same day, after an initial conference and on consent of the parties, the Court entered a temporary restraining order (“TRO”) enjoining defendants from distributing any additional copies of “Expelled” for theatrical release, or producing or distributing any DVDs of the movie, pending a hearing on the motion for a preliminary injunction. On May 19, 2008, the Court heard oral argument on the motion for a preliminary injunction. At the conclusion of that hearing, the Court continued the TRO pending its determination of the motion for a preliminary injunction and directed plaintiffs to post security pursuant to Fed.R.Civ.P. 65(c). Now, after considering the arguments and submissions of the parties, as well as having viewed the movie, including the excerpt at issue, the Court makes the following findings of facts and conclusions of law.

'''II. FINDINGS OF FACT'''

“Expelled” is a feature-length (one hour, thirty-nine minute long) nationally released theatrical movie that addresses what it characterizes as a debate between


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1. Teach filial piety, and fidelity: Nature gives to all, whether scholars, farmers, mechanics, or merchants, a connatural sense of the four virtues, expressed by four words:

2. Cultivate talent; and schools are the places to foster talent. I hold public schools to be of first importance. Why so slow in assisting, where aid is required!—I will subscribe my salary to assist poor districts to establish public schools; and let the Foo districts subscribe 200 taels, and the Chih-le-Chow districts 150 taels, and the Keen districts 100 taels, and all the local officers according to their ability; and let them take the lead, and induce the country gentlemen to come forward, and manage the concerns, &c.

3. Respect the aged.

4. The gentry are the hope of the poor people: let them instruct them, and guide them, &c.

5. Let the rich, who derived their wealth from their ancestors, assist their poor kindred, &c.

6. Let the poor remember, that poverty or riches are according to the decree of Heaven, and let them be content, &c.

7. Let merchants and traders deal fairly and honestly, &c.

8. Instruct mothers to teach their children. Early instructions are second nature.

9. Since women do not learn to read, let fathers and husbands instruct their wives and daughters, on whom the rise, or ruin, of the family depends. The duties of women are chiefly these; to be dutiful to their husbands' parents, to respect their husbands; to agree with their sisters; to teach their children; to be diligent in weaving and spinning; to prepare repasts of wine and food: these are all. When principles of virtue are established, they will be good wives and mothers, and chaste, and an honour to their family; but if they are indulged, and left uninstructed, they will, one day, become lewd; their virtue be ruined, and their parents be disgraced.


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Rh

1. Laud and soothe the virtuous distressed, as virgins; those who suffer death rather than a violation of chastity (or martyrs of chastity); unmarried daughters, eminently dutiful to parents; chaste wives; martyrs to a chaste widowhood; wives eminently dutiful to parents: for these persons request imperial honorary banners, &c.

2. Honour filial duty.

3. Respect the aged.

4. Hold up to view the eminently virtuous.

5. Illustrate the good and charitable.

6. Praise, and encourage to correct and benevolent conduct, village elders, and city constables.

7. Give honorary banners to families, that excel in domestic virtues.

1. Prohibit gaming.

2. Interdict suicide, or making light of one's life. It is the detestable custom of Canton Province, on every slight occasion, for a slight resentment, to commit suicide. And the relatives of the self-murderer view the dead body, as a piece of goods of extraordinary value. They contrive to allege that the deceased committed suicide, in consequence of ill-usage from some rich neighbour, who, to avoid litigation, gives them a sum of money; or, if he refuses, they combine with the police, and commence a prosecution, &c.

When I was at Nan-keung district, in the office of the magistrate, five or six suicides occurred every month, &c.

3. Canton abounding in hills and rivers, it abounds in thefts and robberies, both by individuals, and associated bodies of men—let these be acted against, &c.

4. Vagabond attornies excite litigations, increase and protract them, in numbers infinite, and to periods interminable. The innocent are accused, and the utterly wrong become accusers; they find avaricious and cruel magistrates, and fraudulent police extortioners. Disputes about marriages and lands, are viewed by magistrates as petty affairs, and are given to the


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 proponents of intelligent design and the scientific theory of evolution. (Decl. of A. Logan Craft dated May 13, 2008 (“Craft Decl.”) ¶ 7.) One of the executive producers of “Expelled” contends that the movie “examines the scientific community’s academic suppression of those who ask provocative questions about the origin and development of life.” (Id. ¶ 7.) According to that same producer, “the film undertakes to inspire viewers to participate in the scientific, political, cultural, and religious debates surrounding this issue, to urge the scientific community to consider views that differ from those held by many members of that community, and to take action to assure that candidates for public office and elected officials take positions and action to accord free speech rights to critics of the adequacy of Darwinian evolution.” (Id. ¶ 8.) The filmmakers also candidly concede that “Expelled” was “produced and distributed for the purpose of earning a financial return for the investors.” (Id. ¶ 13.)

The movie is narrated by Ben Stein, a well-known actor and writer (id. ¶ 9) and consists principally of Stein’s interviews with various proponents of intelligent design and defenders of Darwinian evolution, interspersed with segments of historical stock footage (Decl. of Ronald C. Rodgers dated May 14, 2008 (“Rodgers Decl.”) ¶ 11). As another of the producers of “Expelled” explains it, the use of archival footage serves “to create metaphors and analogies to enhance the message [the filmmakers] are trying to convey.” (Id.) The movie also features several other well known songs. Defendants obtained permission to include every one of those songs in the movie, with the exception of “Imagine.” (Transcript of Preliminary Injunction Hearing dated May 19, 2008 (“Hearing Tr.”) at 8.) Defendants have not used “Imagine” in promoting the movie. (Craft Decl. ¶ 20.)

John Lennon, the world-famous songwriter and former member of the Beatles, wrote the words and music of “Imagine.” Plaintiffs claim, most likely without exaggeration, that Lennon is a “musical icon of the twentieth century” (Aff. of Yoko Ono Lennon dated April 29, 2008 (“Ono Aff.”) ¶ 2) and that “Imagine” is one of the most recognizable songs in the world (Compl. ¶ 14). Since John Lennon’s death in 1980, Yoko Ono Lennon has worked actively with EMI Blackwood Music, Inc. to control the manner in which Lennon’s music is licensed and used. (Ono Aff. ¶ 3.) “Imagine” has been licensed and featured in numerous contexts, including the 1984 film “The Killing Fields,” the opening ceremony of the 2006 Winter Olympics, and the New Year’s Eve festivities in New York City’s Times Square. (Id. ¶ 4.) In addition, the Recording Industry Association of America has included the song in its ranking of the most historically significant recordings. (Id.)

The fifteen-second excerpt of “Imagine” used in “Expelled” comes approximately one hour and five minutes into the movie and includes ten words from the song. While the fifteen seconds of music play, the lyrics appear on screen in subtitles, as follows:
 * Nothing to kill or die for/
 * And no religion too.

(Decl. of John Sullivan dated May 13, 2008 (“Sullivan Decl.”) ¶ 15.) Behind the subtitles, four brief sequences of black and white archival footage run. The first sequence features a group of children in a circle; the second is a sequence of a young girl spinning and dancing; the third sequence is of a military parade, which gives way to a close up of Joseph Stalin waving. (Id. ¶ 18.) The four sequences constitute 0.27 percent of the total movie’s running time. (Id. ¶ 17.)

Immediately preceding the excerpt in the movie are short segments in which


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 several speakers express negative views of religion and the hope that science will eventually diminish religion’s role in society. (Id.) The last of these interviews, with Dr. P.Z. Myers, proceeds as follows: "P.Z. Myers: Religion is an, is an idea that gives some people comfort, and we don’t want to take it away from them. It’s like, it’s like knitting. People like to knit. You know, we’re not going to take their knitting needles away, we’re not going to take away their churches. Uh, but what we have to do is, is get it to a place where religion is treated at the level it should be treated, that is, something fun that people get together and do on the weekend and really doesn’t affect their life as much as it has been so far.

Ben Stein: So what would the world look like if Dr. Myers got his wish?

P.Z. Myers: Greater science literacy, which is going to lead to the erosion of religion, and then we’ll get this positive feedback mechanism going where, as religion slowly fades away we’ll get more and more science to replace it, and that will displace more and more religion, which will allow more and more science in, and we’ll eventually get to that point where religion has taken that appropriate place as, as, as side dish rather than the main course."

(Transcript of “Imagine” Clip in “Expelled,” Ex. B. to Sullivan Decl.) In a voiceover, Ben Stein then intones, “Dr. Myers would like you to think he’s being original but he’s merely lifting a page out of John Lennon’s songbook.” (Id.) The excerpt of “Imagine”—virtually “a page out of John Lennon’s songbook”—then plays. Following it, the movie cuts to a portion of an interview with David Berlinski that begins with Berlinski saying, “In part, I think Matthew Arnold put his hands on it when he spoke about. . . the withdrawal of faith. There is a connection between a society that has at least a minimal commitment to certain kinds of transcendental values and what human beings permit themselves to do one to the other.” (Id. ¶ 19.)

“Expelled” was released in theaters in the United States on April 18, 2008. (Craft Decl. ¶ 16.) Defendants timed the release, in part, to coincide with pending so-called “Academic Freedom” bills in several state legislatures, which would permit teachers to offer their students information critical of the theory of evolution. (Id. ¶¶ 16, 18.) The movie has also been screened for lawmakers and government officials in Florida, Missouri, and Louisiana, and for members of the United States Congress. (Id. ¶ 18.) “Expelled” premiered in 1,052 movie theaters and generated approximately $3 million in revenue in its opening weekend. (Id. ¶ 23.) Defendants claim it has since been viewed by more than one million people (id.), and generated approximately $7,250,000 in box office ticket sales as of May 11, 2008 (Rodgers Decl. at ¶ 7). The number of theaters screening the movie is declining, however, and defendants have stated that by Friday, May 23, 2008, it would be playing in approximately one hundred theaters. (Hearing Tr. at 14; Rodgers Decl. ¶ 8.)

'''III. CONCLUSIONS OF LAW'''

In most cases, a party seeking a preliminary injunction must demonstrate (1) that it will be irreparably harmed in the absence of an injunction, and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor. Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144, 149-150 (2d Cir. 1999). A more rigorous standard that requires a “clear” or “substantial” showing of likelihood of success, rather than simply a


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 of success, applies where an injunction will alter, rather than maintain, the status quo. Id. (quoting Tom Doherty Assocs. v. Saban Entm’t, Inc., 60 F.3d 27, 33-34 (2d Cir.1995)). That is, the “typical” preliminary injunction is prohibitory and seeks only to maintain the status quo. Tom Doherty, 60 F.3d at 34. In contrast, a mandatory injunction “is said to alter the status quo by commanding some positive act.” Id.

Plaintiffs acknowledge that the injunction they seek has both mandatory and prohibitory aspects, in that they ask this Court both to order a recall of copies of the movie that have already been distributed (mandatory) and to prohibit further distribution of “Expelled” (prohibitory). (Hearing Tr. at 15-16.) Plaintiffs’ motion is thus subject to the more stringent standard applicable to mandatory injunctions of establishing a “clear” or “substantial” likelihood of success, and plaintiffs do not disagree. See id. at 35 (heightened standard must be met if one provision of the challenged injunction is mandatory).

A. Irreparable Harm

It is well-established in this circuit that “‘generally when a copyright plaintiff makes out a prima facie showing of infringement, irreparable harm may be presumed.’” Merkos L’Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 96 (2d Cir.2002) (per curiam) (quoting ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 64 (2d Cir.1996)); see also Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir.1985). Because, as discussed below, plaintiffs have made out a prima facie case of copyright infringement, there is a presumption that they will be irreparably harmed absent the injunction. Defendants contend that the extensive Second Circuit precedent holding that a presumption of irreparable harm exists in copyright infringement actions where a prima facie showing of infringement has been made was abrogated by the United States Supreme Court decision in eBay, Inc. v. Mercexchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2007). eBay cannot be read in that manner. In eBay, the Supreme Court vacated the determination of the Federal Circuit that applied that circuit’s “‘general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances.’” 547 U.S. at 391, 126 S.Ct. 1837 (quoting MercExchange, L.L.C. v. eBay, Inc., 401 F.3d 1323, 1339 (Fed.Cir.2005)). The Supreme Court held that that rule violated the Patent Act’s instruction to courts to decide motions for injunctive relief “in accordance with principles of equity.” 35 U.S.C. § 283.

The presumption of irreparable harm in copyright infringement actions, unlike the rule addressed in eBay, does not require courts to impose an injunction following a determination of infringement. See id. at 392-93, 126 S.Ct. 1837 (“[A]s in our decision today, this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed.”). Notwithstanding the presumption of irreparable harm, the decision whether to impose a preliminary injunction in a copyright infringement action remains within the sound discretion of the district courts. See, e.g., Merkos L’Inyonei Chinuch, 312 F.3d at 96. Moreover, since eBay, the Second Circuit has applied a presumption of irreparable harm in the context of a preliminary injunction sought pursuant to a false advertising claim. See Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 162 (2d Cir.2007).

eBay is also distinguishable in that it involved a permanent injunction rather than a preliminary injunction. Whereas a court deciding whether to impose a permanent injunction has before it the full record after judgment on the merits, the record on a motion for a preliminary injunction is to some degree incomplete. A presumption temporarily removing the need to prove irreparable harm may serve the ends of equity at this early stage of the litigation even if it would be inappropriate where the record is complete. Random


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 House, Inc. v. Rosetta Books LLC, 283 F.3d 490, 491 (2d Cir.2002) (“[B]ecause a prima facie case of copyright infringement gives rise to a presumption of irreparable harm, the requirement of proof of irreparable harm can in such a case effectively be met by proof of a likelihood of success on the merits.”). Defendants have adduced no evidence to rebut that presumption; accordingly, the Court finds that irreparable harm exists absent an injunction.

B. Likelihood of Success on the Merits

On a motion for a preliminary injunction, the burdens of proof “track the burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). Accordingly, in this action, plaintiffs bear the burden of establishing a prima facie case of copyright infringement. See, e.g., ''Castle Rock Entm’t, Inc. v. Carol Pub. Group, Inc.'', 150 F.3d 132, 137 (2d Cir.1998). Defendants, in turn, bear the burden of establishing fair use, which is an affirmative defense to a claim of copyright infringement. Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 107 (2d Cir.1998).

1. Plaintiffs’ Prima Facie Case of Copyright Infringement.

Section 106 of the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., “grants copyright owners a bundle of exclusive rights, including the rights to ‘reproduce the copyrighted work in copies.’” Castle Rock, 150 F.3d at 137 (quoting 17 U.S.C. § 106). “In the absence of defenses, these exclusive rights normally give a copyright owner the right to seek royalties from others who wish to use the copyrighted work.” Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 73 (2d Cir. 1997). To establish a claim of copyright infringement, a plaintiff must show (1) ownership of a valid copyright and (2) unauthorized copying or a violation of one of the other exclusive rights afforded copyright owners pursuant to the Copyright Act. Hasbro Bradley, 780 F.2d at 192.

Here, the parties agree that “Expelled” copies an approximately fifteen-second excerpt of “Imagine” and defendants did not obtain permission before including the excerpt in the movie. Thus, the second prong of plaintiffs’ claim of copyright infringement—unauthorized copying—is satisfied.

Whether plaintiffs have satisfied the first requirement by showing ownership of the copyright to “Imagine” is disputed. Plaintiffs assert that because John Lennon, the song’s author, died prior to the copyright’s twenty-eight year renewal period, his widow and children were entitled to renew the copyright. See 17 U.S.C. § 304(a)(1)(C)(ii). Defendants note, however, that although Yoko Ono Lennon, Sean Lennon, and Julian Lennon renewed the copyright in 1998, the owner of the original copyright was Northern Songs, Limited. (Ex. A, B to Compl.) Northern Songs assigned its copyright to Ono Music in 1984, and Ono Music in turn assigned its copyright to Lenono Music in 1985. (Ex. B to Decl. of Dorothy M. Weber dated May 16, 2008 (“Weber Decl.”).) Defendants contend that because the song was originally copyrighted by Northern Songs, Limited, which was a corporate body, Lenono Music, rather than plaintiffs, is the proper party to have renewed the copyright at the end of its initial twenty-eight-year term, unless Northern Songs, Limited originally obtained the copyright from


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Rh In the dim, delicious silence, even the water fell asleep, Looking bright, and pure, and placid, and immeasurably deep; And subdued by this strange beauty, the communer by my side Hushed his spiritual revealings, and sat voiceless by his bride. How beautiful the stillness! this intense yet softened rest! A perfect sense of happiness thrilled deep within each breast! When as we watched the tremble of the starlight on the stream From out the shadow of a curve all noiseless as a dream, All slowly, softly, silently, all spirit-like and clear. Gliding through the gently parting waves a vessel did appear. We hushed our breath—we hushed our hearts—no echo of a sound Came in through the dim loveliness, the solemn air around! We gazed upon the silent ship—no sign of life was there. Yet on it glided gracefully, all tall, and straight, and fair! We saw the ripples break away and lose themselves in light, As gently but unwaveringly it stole upon our sight; We saw each slender spar and mast defined against the sky, As slowly, softly, silently, it phantom-like went by. A feeling of sublimity, which could not be expressed. Sank heavy through the breathless hush upon each throbless breast— A sense of something beautiful, yet almost to be feared. As slowly, softly, silently, the strange ship disappeared. "Sybil" was breathed upon my ear in one low thrilling tone. And I felt the clasping of a hand grow tighter on my own. It was enough—within our souls each felt that ship to be An emblem of our spirit-love—our mingled destiny! It seemed so like a hallowed spell, so like a lovely dream, With lingering steps we turned away from the star-lighted stream; Its beauty was so strange, and wild, and inexpressible, That after many days had passed we found no words to tell Our thoughts of dreamy loveliness and certainty it gave. That thus our still, deep, spirit-love should glide upon life's wave. Clouds now are o'er our silent ship, and not one starry gleam Falls softly through the shadows that dim life's troubled stream; There aie storms, and clouds, and darkness, but I tremble not with fear. For our ship will glide unshaken on till the stars again appear.


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204  Such thoughts as these that silent ship within our souls awoke, Are prophecies too sure and deep to be by darkness broke ; And whether there be storms or not, our spirits linked must be, Till our bark is moored in safety in the far Eternity.

hearts will seek romances— Youthful hearts will have their fancies; And there is a dream I cherish
 * That is with me all the day.

Of a grand old tree that springetli Where its waving foliage flingeth A soft shadow on the casement,
 * Where I muse the hours away—

A soft shadow, weary never
 * Of its light and shifting play.

This I dream—an angel spirit Is forever hovering near it, And within it and above it,
 * With a mission from the sky!

For the old tree seems to love me, As it waves its boughs above me With a faint and gentle murmur.
 * Or a low and saddened sigh;

For it seems to guard and cherish
 * Even the wayward dreamer—I!

There's a whisper and a blessing In the beautiful caressing Of the leaves that stoop to kiss me


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 John Lennon by means of assignment or license. See 17 U.S.C. § 304(a)(1)(B)(ii). Because the record contains no evidence as to the circumstances under which Northern Songs, Limited obtained the copyright, defendants assert that plaintiffs have failed to meet their burden of showing a clear likelihood of success on their claim of copyright infringement.

This Court disagrees. A renewal registration is prima facie evidence of the validity of a copyright. 17 U.S.C. § 304(a)(4)(B). Certainly, the presumption of validity is rebuttable. See ''Hamil Am. Inc. v. GFI'', 193 F.3d 92, 98 (2d Cir.1999). The party challenging the validity of the copyright, however, bears the burden of rebutting the presumption. Id. Here, defendants raise doubts concerning the validity of the renewal copyright by arguing that plaintiffs have failed to explain gaps in the chain of ownership. Without any evidence of invalidity whatsoever, however, defendants cannot rebut the statutory presumption. Accordingly, plaintiffs have established a prima facie case of copyright infringement.

2. Defendants’ Fair Use Defense

The doctrine of fair use, as codified by the Copyright Act of 1976, is as follows: “[T]he fair use of a copyrighted work. . . for purposes such as criticism, comment, news reporting, teaching. . ., scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. “From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts. . . .’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (quoting U.S. Const. art. I, § 8, cl. 8). The fair use doctrine “‘permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’” Id. at 577, 114 S.Ct. 1164 (quoting Stewart v. Abend, 495 U.S. 207, 236, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990) (brackets omitted)).

In determining whether the use made of a work in any particular case is a fair use, the factors to be considered include: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107. The four statutory factors, which are nonexclusive, must be “weighed together, in light of the purposes of copyright.” Campbell, 510 U.S. at 578, 114 S.Ct. 1164. Moreover, “the determination of fair use is an open-ended and context-sensitive inquiry.” Blanch v. Koons, 467 F.3d 244, 251 (2d Cir.2006). “The ultimate test of fair use. . . is whether the copyright law’s goal of promoting the Progress of Science and useful Arts. . . would be better served by allowing the use than by preventing it.” Id. (internal quotation marks omitted).

The Court now turns to each of the four statutory fair use factors.

The first statutory factor is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1). This factor, “the heart of the fair use inquiry,” comprises principally two considerations: whether the use is “commercial” and whether it is “transformative.” Blanch, 467 F.3d at 251-53 (internal quotation marks omitted).


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Rh ::As I lean upon the sill; And their murmur makes a feeling That on earth hath no revealing, But that sleepeth in my bosom
 * Mute and eloquent and still,

And their touch upon my forehead
 * Wakes a strangely pleasant thrill.

Where the topmost boughs are swinging, And the waving leaves are singing One low song of love forever
 * To the azure up on high,

Does my soul delight to hover, With the cool leaves for a cover, Resting in a swaying cradle,
 * Looking up into the sky!

With a motion soft as music
 * Swaying in the tree-top high!

O how blest is my wild spirit. When no earthly thought is near it, As it lies 'mid dreams and visions
 * In the arms of the old tree!

All the whispering leaflets bless it. And the wild wind doth caress it. And the soft and dreamy azure
 * Can my spirit only see;

And that seems to grow and deepen
 * Into strange infinity.

But there is a solemn hour When the tree hath wilder power— In the deep and starry midnight,
 * When I sit and watch the sky—

When the foliage moans and shivers. And the starlight o'er it quivers, And the shadows creep and tremble
 * O'er the casement where they lie—


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206 Then the shadow and the whisper
 * Thrill my soul with mystery!

When the summer day is breaking, And the earth is slowly waking— When I throw the shutter open
 * To the morning fresh and fair,

And the spray doth bend before me, Dashing shining dew-drops o'er me, While the little leaves a-laughing,
 * Clap their bright hands in the air,

As the perfumed shower of jewels
 * Sparkles in my unbound hair.

Oh! I know no monarch olden Wore a crown so brightly golden Nor a robe so richly crimson
 * As the tree that loves me wore,

When the air was bright and dreaming, And the heavens were blue and gleaming In the glorious days of autumn,
 * That, alas, are now no more!

Then its murmur grew so mournful
 * As the sunny hours passed o'er.

Therefore, as my wayward spirit Is forever blessed when near it, As it seems to know and love me,
 * And is so beloved by me—

As its every whisper thrills me And its midnight shadow fills me
 * With a thought of mystery—

Do I think some angel mission
 * Hovers ever in that tree!


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208 And thou—oh, thou! I sometimes fear
 * Wilt learn that song of Fate,

That links with every happy note
 * One sad and desolate;

For through the starlight of thine eyes
 * I see the world it hides—

That by the fountains of its song
 * A wild, wild spirit bides.

From where thou shinest in thy pride,
 * I sadly sit apart,

And gather up thy smiles to glad
 * My twilight gloom of heart.

I can not take from thee my eyes,
 * These sad prophetic eyes,

O'er which I often wish the lids
 * Might never, never rise.

I see thy glorious lip of red,
 * Thy lip of love and pride,

And in its quiver read the thought
 * Thy words perchance would hide;

I mark the eloquence of thy brow,
 * The changing of thy face;

In the soft wreathing of thine arms
 * I read thy spirit's grace.

O rare, pure, radiant poetess!
 * Thy spell of life is love!

May he who winds it with his own
 * Be watched by eyes above.

My thought of thee, oh! sweet young girl,
 * With such deep care is fraught,

That words would surely turn to tears
 * In mockery of that thought.


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 Whether the use in question is “of a commercial nature or is for nonprofit educational purposes” is an explicit part of the first fair use factor. Id. at 253; see 17 U.S.C. § 107(1). The “crux of the profit/nonprofit distinction,” however, “is not whether the sole motive for the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612 (2d Cir.2006). “[C]ourts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest. The greater the private economic rewards reaped by the secondary user (to the exclusion of broader public benefits), the more likely the first factor will favor the copyright holder and the less likely the use will be considered fair.” Blanch, 467 F.3d at 253. Moreover, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579, 114 S.Ct. 1164.

Defendants in this case concede that “Expelled” is a commercial film from which they seek to profit. (Craft Decl. ¶ 13.) As discussed in what follows, however, the movie’s use of “Imagine” is highly transformative, and not merely exploitative, and accordingly, the fact that the use is also commercial receives less weight in the analysis. Moreover, defendants have established for purposes of this motion that the movie contributes to the broader public interest by stimulating debate on an issue of current political concern. (Craft Decl. ¶¶ 16, 18.) Therefore, the commercial purpose of “Expelled” weighs only weakly against a finding of fair use.

A work is transformative if it does not “merely supersede[] the objects of the original creation” but “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Id. (internal quotation marks omitted). Although transformative use “is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Id. (citation omitted). Thus, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.” Id. There is a strong presumption that this factor favors a finding of fair use where the allegedly infringing work can be characterized as involving one of the purposes enumerated in 17 U.S.C. § 107: “criticism, comment, news reporting, teaching. . ., scholarship, or research.” See NXIVM Corp. v. Ross Inst., 364 F.3d 471, 477 (2d Cir.2004).

Defendants’ use is transformative because the movie incorporates an excerpt of “Imagine” for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” (“Imagine” lyrics, Ex. D to Weber Decl.) As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.”


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 (Sullivan Decl. ¶ 18.) The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. (Id.) The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views. (Sullivan Decl. ¶ 14.)

The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” (Transcript of “Imagine” Clip in “Expelled,” Ex. B. to Sullivan Decl.) In defendants’ view, “Imagine” “is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not new and have been tried before with disastrous results.” (Sullivan Decl. ¶ 21.) The filmmakers “purposefully positioned the clip. . . between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior. . . . mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.” (Id. ¶ 20.)

Defendants’ use of “Imagine” is similar to the use at issue in a recent decision of the United States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons. There, the visual artist Jeff Koons copied photographer Andrea Blanch’s photograph from a fashion magazine without permission and incorporated a portion of it into one of his paintings. 467 F.3d at 247. Blanch’s photograph featured the legs and feet of a woman wearing expensive sandals, resting in a man’s lap in what appeared to be an airplane cabin. Id. at 248. Koons included the legs and feet in his painting, inverting their orientation, adding a heel to one of the sandals, and placing them, along with images of several other pairs of legs and feet, against a background including a grassy field and Niagara Falls. Id. at 247. The legs appeared to dangle over images of confections. Id.

The Second Circuit panel found Koons’s use of Blanch’s photograph transformative. Id. at 253. The court noted that Koons used the image for “sharply different” purposes than Blanch, in that he used it “as fodder for his commentary on the social and aesthetic consequences of mass media.” Id. at 252. As Koons had explained, by juxtaposing women’s legs against 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 sex—are mediated by popular images.” Id. at 247 (internal quotation marks omitted). Moreover, Koons altered the colors, background, medium, size, and details of the image in incorporating it into his painting. Id.; see also Bill Graham Archives, 448 F.3d at 611 (finding the defendants’ inclusion of the plaintiff’s images in a book to be transformative where the defendants significantly reduced the images’ size and “combin[ed] them with a prominent timeline, textual material, and original graphic artwork, to create a collage of text and images on each page”).

As in Blanch, defendants here use a portion of “Imagine” as “fodder” for social commentary, altering it to further their distinct purpose. Just as Koons placed a


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 portion of Blanch’s photograph against a new background, defendants here play the excerpt of the song over carefully selected archival footage that implicitly comments on the song’s lyrics. They also pair the excerpt of the song with the views of contemporary defenders of the theory of evolution and juxtapose it with an interview regarding the importance of transcendental values in public life.

Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it. (Sullivan Decl. ¶ 16.) Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished 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 regarding the role of religion in public life.

Plaintiffs also contend that defendants’ use of “Imagine” is not transformative because it was unnecessary to use it in order to further the purposes defendants have articulated. Determining whether a use is transformative, however, does not require courts to decide whether it was strictly necessary that it be used. In Blanch, although certainly Koons did not need to use Blanch’s copyrighted photo, as opposed to some other image of a woman’s feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found a transformative use in the defendants’ unauthorized inclusion of several of the plaintiff’s images—principally concert photos—in a coffee-table book about the musical group the Grateful Dead. 448 F.3d at 607, 608-12. Although the defendants manifestly could have proceeded without the plaintiff’s images, which constituted only a small part of the book, this posed no obstacle to a finding of fair use.

Moreover, defendants contend that it was important that they use “Imagine,” rather than some other song expressing similar views, because it is the “paradigm example” that “has the most cultural force to it because it represents the most popular and persuasive embodiment of th[e] viewpoint that the world is better off without religion.” (Hearing Tr. at 23.) Defendants also assert that their purpose in using the excerpt of the song was in part to critique the emotional impact the song has on listeners. (Id. at 23-24.)

Finally, although a minor factor, it weighs in favor of a finding of transformative use that the excerpt of “Imagine” in “Expelled” constitutes only 0.27 percent of the movie’s total running time. See id. at 611 (noting that the plaintiff’s images constituted less than 0.20 percent of the defendants’ book and stating, “we are aware of no case where such an insignificant taking was found to be an unfair use of original materials”). (Sullivan Decl. ¶ 17.)

In sum, defendants’ use of “Imagine” is transformative because it does not “merely supersede[ ] the objects of the original creation” but rather “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579, 114 S.Ct. 1164. This consideration thus weighs strongly in favor of fair use.


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Plaintiffs note that defendants obtained permission for all the other music used in the movie and contend that defendants’ failure similarly to seek permission to use “Imagine” evinces bad faith. The Second Circuit, however, has rejected this proposition. See Blanch, 467 F.3d at 256 (“We are aware of no controlling authority to the effect that the failure to seek permission for copying, in itself, constitutes bad faith.”). Indeed, the Second Circuit, in Blanch, approvingly quoted the dictum in Campbell that “‘[i]f the use is otherwise fair, then no permission need be sought or granted.’” Id. (quoting Campbell, 510 U.S. at 585 n. 18, 114 S.Ct. 1164). The fact that defendants here obtained permission to use the other music in the movie does not alter this conclusion.

The second fair use factor considers “the nature of the copyrighted work.” 17 U.S.C. § 107(2). This factor “‘calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.’” Blanch, 467 F.3d at 256 (quoting Campbell, 510 U.S. at 586, 114 S.Ct. 1164). Two distinctions are relevant to this analysis: (1) “whether the work is expressive or creative, such as a work of fiction, or more factual, with a greater leeway being allowed to a claim of fair use where the work is factual or informational,” and (2) “whether the work is published or unpublished, with the scope of fair use involving unpublished works being considerably narrower.” Id. (quoting 2 Howard B. Abrams, The Law of Copyright § 15:52 (2006)).

Defendants here concede, as they must, that “Imagine” is a creative work and, as such, is at the “core” of copyright protection. They note, however, that the work is widely published, which weighs a bit in favor of fair use. Moreover, this second statutory factor “may be of limited usefulness where the creative work of art is being used for a transformative purpose.” Bill Graham Archives, 448 F.3d at 612. Indeed, where, as here, the secondary work comments on the “social and aesthetic meaning” of the original, rather than “exploit[ing] its creative virtues,” the second fair use factor has “limited weight.” Blanch, 467 F.3d at 257. It thus weighs against a finding of fair use, but not strongly.

The third statutory fair use factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). The inquiry under this factor focuses on the copyrighted work, not the allegedly infringing one, Bill Graham Archives, 448 F.3d at 613, and considers whether “the quantity and value of the materials used are reasonable in relation to the purpose of the copying,” Blanch, 467 F.3d at 244 (internal quotation marks omitted). This factor has both “a quantitative and a qualitative component,” in that “[t]he factor favors copyright holders where the portion used by the alleged infringer is a significant percentage of the copyrighted work, or where the portion used is essentially the heart of the copyrighted work.” NXIVM, 364 F.3d at 480.

The quantitative component of this inquiry clearly favors defendants. Defendants use only a fifteen-second excerpt of “Imagine,” a song that runs three minutes in total. (Decl. of Dr. Lawrence Ferrara dated May 14, 2008 (“Ferrara Decl.”) ¶ 5.) Moreover, they selected a portion of the song (“Nothing to kill or die for/


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400 400 FLUTTER-DUCK.

And as soon as Rachel had got her mother installed in a wonderful easy-chair, she hastened with all the eagerness of maternal pride, with all the enthusiasm of remorse, to throw open the folding-doors that led to her bedroom, so as to give Flutter- Duck the crowning surprise — the secret tit- bit she had reserved for the grand climax.

" There's a fine boy ! " she cried.

And as Flutter-Duck caught sight of the little red face peeping out from the snowy draperies of the cradle, a rapt- ure too great to bear seemed almost to snap something within her foolish, overwrought brain.

" I have already a grandchild ! " she shrieked, with a great sob of ecstasy ; and, running to the cradle-side, she fell on her knees, and covered the little red face with frantic kisses, repeating " Lewis love, Lewis love, Lewis love," till the babe screamed, and Rachel had to tear the babbling creature away.

You may see her almost any day walking in the Ghetto market-place — a meagre, old figure, with a sharp-featured face and a plaited chignon. She dresses richly in silk, and her golden earrings are set with coloured stones, and her bonnet is of the latest fashion. She lives near Epping Forest, and almost always goes home to tea. Sometimes she stands still at the point where the two market streets meet, extending vacantly a gloved hand, but for the most part she wanders about the by-streets and alleys of White- chapel with an anxious countenance, peering at every woman she meets, and following every young couple. " If I could only find her ! " she thinks yearningly.

Nobody knows whom she is looking for, but everybody knows she is only " Flutter-Duck."

Printed in the United States of America.


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 And no religion too”) that expresses the idea they specifically wished to critique—that an ideal society would be entirely secular—without copying other portions of the song that do not express that idea. (Sullivan Decl. ¶ 17.) Thus, quantitatively, defendants’ use was reasonable in light of their purpose in copying.

Assessing the qualitative aspect of the inquiry is appropriately somewhat more complicated. Plaintiffs’ expert musicologist, Dr. Lawrence Ferrara, analyzed the music and concluded that “the portion of ‘Imagine’ that appears in ‘Expelled’ represents a substantial and memorable part of the overall ‘Imagine’ musical composition.” (Ferrara Decl. ¶ 2.) In other words, Dr. Ferrara’s opinion is that the fifteen-second excerpt at issue contains the “heart” of “Imagine.” Specifically, he found that the excerpt of “Imagine” in “Expelled” includes musical phrases that appear in nearly 50 percent of the song. (Id.) The fifteen-second excerpt consists of two iterations of (1) a two-bar vocal phrase, (2) two phrases of lyrics, (3) a two-bar piano phrase, and (4) a two-bar variant piano phrase. (Id. ¶ 6.) Although the lyrics in the excerpt appear only once in the song, the two-bar vocal phrase in the excerpt is repeated twelve times in the song, the two-bar piano phrase occurs nine times in the verses and twice in the introduction, and the two-bar variant piano phrase occurs three times in the song. (Id. ¶¶ 8-10.) Thus, Dr. Ferrara concludes, although only a fifteen-second portion of the sound recording of “Imagine” appears in “Expelled,” the musical phrases heard in those fifteen seconds are repeated during a full 87 seconds of the song, or 48.8 percent of its total duration. (Id. ¶ 12.) He also concludes that the portion of the song defendants use is immediately recognizable as being from “Imagine.” (Id. ¶ 17.)

Assuming Dr. Ferrara’s analysis is correct, and that, as a result, defendants’ excerpt constitutes the heart of plaintiffs’ copyrighted work, it is not dispositive of the issue for two reasons. First, as Dr. Ferrara makes patent, “Imagine” is musically repetitive, and it is not clear that defendants could have used any portion of the song without ending up with an excerpt that referenced a significant part of the overall composition. For this reason alone, the Court could not conclude that defendants’ use was unreasonable in light of their purpose.

Second, the Supreme Court explained in Campbell that “[c]opying does not become excessive in relation to a parodic purpose merely because the portion taken was the original’s heart.” 510 U.S. at 588, 114 S.Ct. 1164. In Campbell, the Court considered whether the rap group 2 Live Crew’s use of a portion of Roy Orbison’s song “Oh, Pretty Woman” constituted fair use. Id. at 571-72, 114 S.Ct. 1164. In considering the third fair use factor, the Court assumed for purposes of analysis that the defendants’ quotation of the original’s opening musical phrase and first line of lyrics went to the heart of the original song. Id. at 588, 114 S.Ct. 1164. The Court concluded, however, that “[i]f 2 Live Crew had copied a significantly less memorable part of the original, it is difficult to see how its parodic character would have come through.” Id. at 588-89, 114 S.Ct. 1164. Although the Supreme Court’s analysis was specifically directed at parody, this Court is aware of no reason not to apply it equally to copying for purposes of criticism and commentary. Using an easily recognizable portion of “Imagine” was relevant to defendants’ commentary because they wished to demonstrate that the negative views of religion expressed by their interview subjects were not new. (Sullivan Decl. ¶¶ 17, 21.)


text: The King of Schnorrers (Collection)

title: The King of Schnorrers (Collection)


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 Accordingly, both quantitatively and qualitatively, the portion of “Imagine” that defendants copy is reasonable in light of their purpose for doing so. This third factor therefore weighs in favor of fair use.

The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). “In considering the fourth factor, [the] concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work. The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.” Blanch, 467 F.3d at 258. In this analysis, “[t]he court looks not only to the market harm caused by the particular infringement, but also to whether, if the challenged use becomes widespread, it will adversely affect the potential market for the copyrighted work.” Bill Graham Archives, 448 F.3d at 614.

Plaintiffs understandably contend that if unauthorized use of “Imagine” were to become widespread, it would harm the marketplace for licensing the song. In Bill Graham Archives, however, on a full record developed on a motion for summary judgment, the Second Circuit rejected a similar argument regarding lost licensing revenue. 448 F.3d at 614-15. That court explained that although the plaintiff had established a market for licensing its concert posters, the defendants’ use of the posters in their biographical book “f[ell] within a transformative market,” and therefore the plaintiff “d[id] not suffer market harm due to the loss of licensing fees.” Id. at 615. Here, similarly, defendants copied plaintiffs’ work for a transformative purpose, and plaintiffs have proffered no evidence to date that permitting defendants to use a fifteen-second portion of the song for a transformative purpose will usurp the market for licensing the song for traditional uses. Accordingly, this factor does not weigh strongly, if at all, against fair use.

The balance of factors clearly favors a finding of fair use. Defendants’ use of “Imagine” is transformative because their purpose is to criticize the song’s message. Moreover, the amount and substantiality of the portion used is reasonable in light of defendants’ purpose. Although “Imagine,” as a creative work, is at the core of copyright protection, and defendants’ use of the song is at least partially commercial in nature, the weight of these factors against a finding of fair use is limited given that defendants’ use is transformative. Finally, plaintiffs have not shown that defendants’ use will usurp the market for licensing the song for non-transformative purposes. In sum, allowing defendants’ use would better serve “the copyright law’s goal of promoting the Progress of Science and useful Arts. . . than [would] preventing it.” Blanch, 467 F.3d at 251 (internal quotation marks omitted). Defendants have established that they are likely to prevail on their fair use defense, and accordingly plaintiffs have not shown that they are clearly likely to succeed on the merits of their copyright infringement claim.

C. Balance of Hardships

Although plaintiffs have failed to establish a clear likelihood of success on the merits, they are still entitled to a preliminary injunction if they can show “sufficiently serious questions going to the merits of the case to make them a fair ground for litigation, and a balance of


text: Transactions of the Royal Asiatic Society/Volume 1/Translation of a Chinese Proclamation


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 insulted in their lives before, and they took care to let everybody in the vehicle know that they had paid for first-class, and that at home they kept their own carriage. They were also very indignant because the people at the house where they had lodged had offered to shake hands with them at parting. They did not come to Ober-Ammergau to be treated on terms of familiarity by German peasants, they said.

There are many women in the world who are in every way much better than angels. They are gentle and gracious, and generous and kind, and unselfish and good, in spite of temptations and trials to which mere angels are never subjected. And there are also many women in the world who, under the clothes, and not unfrequently under the title of a lady, wear the heart of an underbred snob. Having no natural dignity, they think to supply its place with arrogance. They mistake noisy bounce for self-possession, and supercilious rudeness as the sign of


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 hardships tipping decidedly in [their] favor.” Tom Doherty, 60 F.3d at 33. On this record, plaintiffs have not shown that the balance of hardships decidedly favors them.

Defendants claim that an injunction barring them from further distributing “Expelled” with the excerpt of “Imagine” and requiring the recall of extant prints would require them to reedit the movie to insert substitute footage making the same point. (Supplemental Decl. of John Sullivan dated May 19, 2008 (“Sullivan Supplemental Decl.”) ¶ 5.) They estimate that selecting appropriate alternative footage and integrating it into the movie would require weeks of work. (Id. ¶¶ 6-10.) Indeed, defendants estimate that “the cost of re-cutting the film would be several hundred thousands dollars.” (Craft Decl. ¶ 35.) In addition, they anticipate that transferring the new footage to 35 millimeter film for theatrical screening, including the movie’s upcoming Canadian theatrical release, would cost tens of thousands of dollars. (Id. ¶ 37.) Defendants also claim that an injunction at this time would jeopardize an imminent Canadian theatrical release (it is currently scheduled for “early June”) and delay the contract for the movie’s release on DVD. (Id. ¶¶ 33, 37.)

Plaintiffs challenge a number of these assertions. In particular, they contend that costs of reediting the movie and reprinting the affected portions onto 35 millimeter film stock would be substantially lower than defendants claim. (Decl. of Walter “Chip” Cronkite III dated May 16, 2008 (“Cronkite Decl.”) at ¶¶ 17-18.)

This Court need not decide whether the hardship to defendants would be as extensive as they claim, because the balance of hardships would not in any event tip decidedly in plaintiffs’ favor. An injunction would require defendants to bear some degree of financial hardship: even plaintiffs’ expert concedes that reprinting the movie would cost defendants at least $56,000. (Id. ¶ 18.) Defendants face additional costs associated with any delay in the Canadian theatrical and DVD releases occasioned by any required editing.

Plaintiffs, on the other hand, assert that the hardship they would face if an injunction does not issue is that the lack of an injunction would engender the perception that it is not necessary to seek permission to copy, with attendant loss of licensing fees. (Decl. of Nancy Weshkoff, Ex. C to Weber Decl., ¶¶ 21-22.) Although these claims are plausible, they are intangible at best, and are answered by the fact that fair use is a defense to copyright infringement. Without some showing that plaintiffs will face substantial lost licensing revenue absent an injunction, this Court cannot conclude that the balance of hardships tips decidedly in plaintiffs’ favor.

'''IV. CONCLUSION'''

Because defendants are likely to prevail on their fair use defense, plaintiffs have failed to show, on the basis of the record developed to date, a clear likelihood of success or even a simple likelihood of success on the merits of their copyright infringement claim. Plaintiffs have also now shown that the balance of hardships tips decidedly in their favor. Accordingly, plaintiffs’ motion for a preliminary injunction is denied.

SO ORDERED.


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 superiority. They encourage themselves in sleepy stupidity under the impression that they are acquiring aristocratic "repose." They would appear to have studied "attitude" from the pages of the London Journal, coquetry from barmaids—the commoner class of barmaids, I mean—wit from thee-act farces, and manners from the servants'-hall. To be gushingly fawning to those above them, and vulgarly insolent to everyone they consider below them, is their idea of the way to hold and improve their position, whatever it may be, in society; and to be brutally indifferent to the rights and feelings of everybody else in the world is, in their opinion, the hall-mark of gentle birth.

They are the women you see at private views, pushing themselves in front of everybody else, standing before the picture so that no one can get near it, and shouting out their silly opinions, which they evidently imagine to be brilliantly satirical remarks, in strident tones: the women who, in the stalls of the theatre, talk loudly all through the performance; and who, having arrived in the middle of the first act, and made as much disturbance as they know how, before settling down in their seats, ostentatiously get up and walk out before the piece is finished: the women who, at dinner-party and "At Home"—that cheapest and most deadly uninteresting of all deadly uninteresting social functions—(You know the receipt for a fashionable "At Home," don't you? Take five hundred people, two-thirds of whom do not know each other, and the other third of whom cordially dislike each other, pack them, on a hot day, into a room capable of accommodating forty, leave them there to bore one another to death for a couple of hours with drawing-room philosophy and second-hand scandal; then give them a cup of weak tea, and a piece of crumbly cake,


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 without any plate to eat it on; or, if it is an evening affair, a glass of champagne of the you-don't-forget-you've-had-it-for-a-week brand, and a ham-sandwich, and put them out into the street again)—can do nothing but make spiteful remarks about everybody whose name and address they happen to know: the women who, in the penny 'bus (for, in her own country, the lady of the new school is wonderfully economical and business-like), spreads herself out over the seat, and, looking indignant when a tired little milliner gets in, would leave the poor girl standing with her bundle for an hour, rather than make room for her—the women who write to the papers to complain that chivalry is dead!

B., who has been looking over my shoulder while I have been writing the foregoing, after the manner of a Family Herald story-teller's wife in the last chapter (fancy a man having to write the story of his early life and adventures with his wife looking over his shoulder all the time! no wonder the tales lack incident), says that I have been living too much on sauerkrout and white wine; but I reply that if anything has tended to interfere for a space with the deep-seated love and admiration that, as a rule, I entertain for all man and womankind, it is his churches and picture-galleries.

We have seen enough churches and pictures since our return to Munich to last me for a very long while. I shall not go to church, when I get home again, more than twice a Sunday, for months to come.

The inhabitants of Munich boast that their Cathedral is the ugliest in Europe; and, judging from appearances, I am inclined to think that the claim must be admitted. Anyhow, if there be an uglier one, I hope I am feeling well and strong when I first catch sight of it.


text:
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Rh


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 increasing, though the use, ancient and modern, is in the main still the same.'''II. himinn:''' the contraction in dat. sing. and plur. is to be noted, and the assimilation in the nom.; hereto belong all masc. with inflex. -inn, -unn, -arr, -urr, -ill, -ull:1. -nn, aptan-n, arin-n, dróttin-n, himin-n, Óðin-n, morgin-n.2. -arr, hamar-r, kamar-r, humar-r, jaðar-r, nafar-r, etc.: pr. names in -arr (the -ar in these is etymologically different) are not contracted, e.g. Einar-r, dat. Einar-i.3. -urr, fjötur-r, tötur-r, jöfur-r; but not so in the pr. names, e.g. Gizur-r, dat. Gizur-i.4. -ll, bagal-l, kaðal-l, vaðal-l, biðil-l, ketil-l (q.v.), lykil-l, jökul-l, röðul-l, stöðul-l, söðul-l, möndul-l, öngul-l, þöngul-l, etc.: even the pr. names are contracted, e.g. Egil-l, dat. Agli; Ketil-l, dat. Katli.'''III. læknir:''' hereto belong only a score of common words used in prose writing, bætir, ein-ir, elr-ir, end-ir, eyr-ir, fell-ir, hell-ir, hers-ir, hirð-ir, kæs-ir, kyll-ir, létt-ir, lækn-ir, miss-ir, mæl-ir, mœn-ir, nenn-ir, reyn-ir, skelm-ir, steyp-ir, verm-ir, víð-ir, vís-ir, þerr-ir: pr. names as, Grett-ir, Brest-ir, Bein-ir, Styrm-ir, Sverr-ir, Þór-ir, Æg-ir: local names, Geys-ir, Keil-ir.2. a great many (more than a hundred) poët. and obsolete words. ☞ In mod. usage the declension of these words is altered and the r is kept throughout, whereby nom. dat. acc. sing. becomes alike, hell-ir, gen. helli-rs, dat. acc. hell-ir, pl. hell-rar, hell-re, hell-rum, or lækn-irar, lækn-ira, lækn-irum:—the words with an inflex. -ari were originally, as shewnshown [sic] by Gothic bôcar-eis, of this declension, but now they are all weak masc., and the sole instances left on record of the old inflexioninflection [sic] are the gen. mútar-is by Sighvat, and vartar-is, Landn. 197 (v. l. 18) in a verse of the 10th century.

Remarks on the 2nd Declension: the words belonging hereto are far less in number than those of the 1st, perhaps seven score of simple nouns or thereabout, but they are often irregular, we shall therefore try to give a list of them; their marks, besides the plur. -ir, are the freq. dropping of the dat. sing. -i, the acc. plur. -u, and the characteristic i:I. fundr: skrið-r, stuld-r, sull-r, sult-r, veg-r, frið-r, kvið-r (a womb), feld-r, verð-r, brest-r, gest-r, rétt-r, kost-r, burð-r, skurð-r, þurð-r, fund-r, mund-r, grís-s, ná-r:—inflex. -aðr, -uðr, búnað-r, fögnuð-r, hagnað-r, jöfnuð-r, getnað-r, söknuð-r, dugnað-r, þrifnað-r, skilnað-r, etc.:—stað-r, brag-r, mat-r, sal-r, ham-r, svan-r, val-r, sauð-r, óð-r, snúð-r, þrótt-r, bol-r, dug-r, hug-r, bug-r, grun-r, mun-r, hlut-r, skut-r, vin-r, grip-r, glœp-r, lýð-r,—in these words the dat. -i is dropped, as also in compd nouns in -skap-r, gleðskap-r, fíflskap-r, etc.:—pr. names in -rðr, -ndr, -kon have also -ar in gen., Bárð-r, Þórð-r, Sigurð-r, Þránd-r, Eyvind-r, Geirröð-r, Sigröð-r, Há-kon, etc.:—in pl., pr. names of some people (countries or counties), Danir, Frísir, Valir, Indir, Vindir, Lappir, Grikkir, Tyrkir, Kyrjalir, Kvenir, Serkir, Vanir (the gods): Egðir, Eynir, Háleygir, Mœrir, Synir, Þilir, Þrœndir (in Norway): -dœlir, Lax-dœlir, Vatns-dœlir, etc. ☞ Irregularities; some of the words above have -s in gen. sing. like those of the 1st declension, e.g. hal-r, val-r, ham-r, svan-r, bol-r, dug-r, grun-r, brest-r, gest-r, grís-s, glœp-r, lýð-r, ná-r:—dal-r, hval-r, staf-r, mar-r, hver-r, ref-r, sel-r, mel-r, have now usually -ir in pl. but in olden times they had -ar, and belonged to the 1st declension; they also drop the -i in dat. sing.'''II. bekkr: with characteristic j, which appears before a vowel in a score and a half of words; beð-r, vef-r, bekk-r, hrekk-r, stekk-r, flekk-r, leyg-r, eyk-r, reyk-r, legg-r, vegg-r, belg-r, elg-r, merg-r, streng-r, þveng-r, hrygg-r, drykk-r, hlykk-r, byl-r, hyl-r, ryf-r, byr-r, hyr-r, styr-r, lœk-r, bœ-r.2.' dreng-r, segg-r, stegg-r, etc. have -s'' in gen. sing. ☞ Almost all those above (with characteristic j) also drop. the dat. -i in sing.'''III. köttr:''' with an old acc. pl. in -u, prob. caused by a characteristic u (cp. the Goth. airus, qviþus, tigus, vabstus, valus), three score words:1. with a plain root vowel; kvið-r (dictum), kvist-r, kvitt-r, lið-r, lim-r, lit-r, sið-r, smið-r, stig-r, tig-r, við-r, réttr (a fold), bur-r: most of these words drop the -i in dat. (lið, lim. lit. sið, smið, stig).2. with a change in the root vowel,—ö, a, e, lög-r, mög-r, völ-r, völl-r, vönd-r, vörð-r, mörð-r, svörð-r, böll-r, börk-r, knörr, gröpt-r, örn, flöt-r, hött-r, knött-r, kött-r, vött-r, köst-r, vöxt-r, löst-r, mökk-r, Höð-r, Hörð-r, Snört-r, spöl-r (vide bring-spelir):—jö, ja, i, björn, fjörð-r, hjört-r, kjöl-r, mjöð-r, skjöld-r, Njörð-r (the god):—ó, æ, bóg-r:—o, y, son-r: the acc. pl. -u has been changed into -i, first, in árr, áss, making áru, ásu, which changed to æri, æsi, a change which took place very early, and later in other words, which have now all got a regular acc. in -i (limi, firðo, ketti, hetti, syni, etc.); syni for sonu occurs even in old MSS. ☞ To björn (p. 66) add that when used as a pr. name it has in mod. usage a gen., Björn-s, not Bjarnar (e.g. Sigurðr Björnsson).

Remarks on the 3rd Declension:I. ordinary substantives,1. gen. -ar, mánað-r, pl. -r, mod. -ir; fót-r, q.v.; vetr, fingr, q.v.2. gen. -s, mað-r, gen. mann-s, pl. menn (með-r); nagl, gen. nagl-s, pl. negl.'''II. eigendr:''' the plur. of participles, when used as subst. as grátend-r, fagnend-r, gefend-r: hereto belong the plur. of bóndi, frændi, fjándi, q.v.III. the plur. of faðir, bróðir may also be reckoned in this declension.

☞ The Icel. is the only of of all Teutonic languages, except Gothic, that has preserved (up to the present day) the masc. inflexive -r (Goth. -s); even in the earliest Anglo-Saxon it is dropped, and the nom. sing. represents the naked root in the masculines as well as in the feminines and neuters.

Remarks on the 1st Declension:I. tíð: almost in every column or page of the Dictionary, and simply marked ‘f.’'''II. höfn:' about four score words, with a in the root vowel changed into ö, caused by a hidden characteristic u,'' which appears in dat. sing. of a few of them:1. fönn, önn, bönn, högld, hrönn, hvönn, spönn, ögn, lögn, sögn, þögn, dröfn, höfn, körf, mörk (sylva), örk, þökk, Hlökk, vömb, þömb, skömm, vömm, klöpp, löpp, ösp, vöst, öxl, mjölt, björg, björk, tjörn, Gjöll (mythol.), löð, tröð, sög, kör, kröm, möl; and in mod. usage, dögg, lögg, öx, kvörn (kvern), q.v.2. with -u in dat. sing.; rödd, rönd, strönd, önd (anima), jörð, hjörð, höll, þöll, mjöll, mörk (sylva), stöng, töng, röst.3. -r in nom. pl.; önd (a duck), mörk (marca), hönd (dat. hendi), röng, tönn.4. the following had in olden times -ar in plur. and thus belonged to the 2nd declension, but changed into -ir at an early date, so that this is the usual form in Editions of Sagas and the sole form in mod. usage,—α. with a single final, röð, döf, gröf, gjöf, nöf, töf, fjöðr, spjör, sök, vök, dvöl, fjöl, kvöl, löm, grön, mön, þön, för, skör, kös, nös, hvöt.β. with double final, vörr, þörd, gjörð, görn. ☞ It is likely that at earlier times many more of these words had the plur. -ar and dat. -u; the -ar remained longest in those with a single final, and the dat. -u in those having dd, nd, ll, ng as final; dat. sak-u (culpae) occurs on Runic stones, and gjaf-u, dval-u, etc. may also be supposed.'''III. sól:' with a characteristic u,'' which appears sometimes in dat. sing. alone, sometimes in both dat. and acc.:1. only in dat. in sál, ván, sól, braut, laut, þraut, fold, mold, þjóð, grund, lund, mund, stund, und, ull, hurð, urð, dögg (irreg.), rödd, etc. (above); nótt, night, in plur. næt-r (3rd declension); ey dat. ey-ju, and egg dat. egg-ju belong to the 2nd declension: mæ-r, dat. mey-ju; even röddu (vocem), Pass. 19. 9, but that is a poët. license.2. fem. pr. names ending in björg, -laug, -rún, -ný, -ey, -leif, Ingi-björg, Guð-björg, Þor-björg, Vil-borg, Ás-laug, Guð-laug, Guð-rún, Sig-ný, As-ný (gen. -nýjar), Þór-ey, Guð-leif, Ingi-leif; in names of foreign origin, Kristín, Katrín, Elín; in all the pr. names the -u fixedly remains (in the appellatives it is often dropped), and this not inly in dat. but as a common case for dat. and acc.3. feminines with the inflexive -ing, fœð-ing, eld-ing, drottn-ing, kerl-ing, kenn-ing, þekk-ing, virð-ing, send-ing, bygg-ing, uppstign-ing, sæ-ing, etc., so many that it would be in vain to try and record them all; they have -ar in plur. and thus belong to the 2nd declension: in mod. usage many of them have the -u in common for dat. and acc., thus drottning-u = reginae and reginam, kenning-u = doctrinae and doctrinam, fœðing-u = nativitatem and nativitati, but this is very rare in old writers, yet drottningu reginam (acc.), Mr. 232, 304.β. in -ung, djörf-ung, hörm-ung, laun-ung, etc. but only in dat.; they have also -ar in plur.

Remarks on the 2nd Delension:'I. nál:'1. the feminines in ing, -ung, vide above.2. over two score simple nouns, ár, ál, nál, skál, tág, flaug, laugh, rauf, dreif, kleif, veig, geil, seil, hlein, rein, vél, heið, rim, sin, hlíf, smíð, flík, kví, for, brú (q.v.), rún, lend, kvern, öx (the old form), alin:—with radical r, gymbr, lifr, vinstr, vigr:—only in plur., leif-ar, hrœr-ar (poët.): heterogene are, lim-ar, tál-ar, (lim, tál in sing. are neut.): heteroclyte are, lyg-ar, görsim-ar (sing. indecl. weak fem.)3. add the words röð, döf, etc. above recorded (1st devlension II. 4).'''II. fit: over a score of words, with characteristic j, which appears before a vowel, hel, skel, ben, eng, egg, dregg, ey, des, fles, il, vin (only in local names, e.g. Björg-vin), fit, klyf, lyf, nyt, dys, nauðsyn, Frigg (the goddess), fiski (q.v.), mæ-r (q.v.), pl. mey-jar:—only in plur., ref-jar, sif-jar, skef-jar, men-jar, skyn-jar, hreð-jar.2.' with characteristic v,'' ör, gen. sing. nom. plur. ör-var, stöð, böð, dögg, gen. stöð-var, böð-var, dögg-var; only in plur. göt-var (obsolete). ☞ Heterogene are the local names in Norway; in fem. plur., Holt-ar, Hús-ar, Hrís-ar, Torg-ar, Tún-ar, Þorp-ar, Nes-jar (holt, hús, hrís, torg, tún, þorp, nes are all neut. appellatives), Ló-ar, Les-jar, Vág-ar, Vin-jar, Kvild-ar, etc., see Munch’s pref. (p. x) to Norge’s Beskriv.'''III. heiðr:''' feminines with an inflex. -r in nom. and characteristic i, which has caused a vowel change in most of them, and which appears in dat. acc. sing.:1. about a score of appellatives; heið-r, veið-r, Hleið-r, erm-r, helg-r, (a holiday), eyr-r, mer,-r, reyð-r, brúð-r, byrð-r, fyll-r, flœð-r, æð-r (an eider-duck), æð-r (vena) mýr-r, vætt-r, öx (qs. öx-r); ký-r, æ-r, sý-r (q.v.), all three contr. in dat. and plur.; the obsolete þý-r, rýg-r, gýg-r (pl. þý-jar, rýg-jar, gýg-jar):—in mod. usage the -r has changed into -i, in heið-i, veið-i, erm-i, eyr-i, mer-i, byrð-i, fyll-i,


text: User:SnowyCinema/P/Milady at Arms

title: User:SnowyCinema/P/Milady at Arms


text: Principles of Political Economy (Malthus)/Advertisement to the Second Edition


text: Principles of Political Economy (Malthus)/Memoir of Robert Malthus


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 cally and practically, and as it appeared to me extremely desirable, with a view to the interests of the science, that they should, if possible, be settled, I did not feel myself justified in giving less time to the consideration of them.

I am far from saying that I may not be wrong in the conclusions at which I have arrived, in opposition to those of Mr. Ricardo. But I am conscious that I have taken all the means to be right, which patient investigation and a sincere desire to get at the truth can give to the actual powers of my understanding. And with this consciousness, both with respect to the opinions I have opposed, and those which I have attempted to establish, I feel no reluctance in committing the results to the decision of the public.

T. R. MALTHUS.

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 that they are not true to an indefinite extent, and that the principle of saving, pushed to excess, would destroy the motive to production. If every person were satisfied with the simplest food, the poorest clothing, and the meanest houses, it is certain that no other sort of food, clothing, and lodging would be in existence; and as there would be no adequate motive to the proprietors of land to cultivate well, not only the wealth derived from conveniences and luxuries would be quite at an end, but if the same divisions of land continued, the production of food would be prematurely checked, and population would come to a stand long before the soil had been well cultivated. If consumption exceed production, the capital of the country must be diminished, and its wealth must be gradually destroyed from its want of power to produce; if production be in a great excess above consumption, the motive to accumulate and produce must cease from the want of an effectual demand in those who have the principal means of purchasing. The two extremes are obvious; and it follows that there must be some intermediate point, though the resources of political economy may not be able to ascertain it, where, taking into consideration both the power to produce and the will to consume, the encouragement to the increase of wealth is the greatest.

The division of landed property presents another obvious instance of the same kind. No person has ever for a moment doubted that the division of such immense tracts of land as were formerly in possession of the great feudal proprietors must be favourable to industry and production. It is equally difficult to doubt that a division of landed property may be carried to such an extent as to destroy all the benefits to be derived from the accumulation of capital and the division of labour, and to occasion the most extended poverty. There is here then a point as well as in the other instance, though we may not know how to place it, where the division of property is best suited to the actual circumstances of the society, and calculated to

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 give the best stimulus to production and to the increase of wealth and population. It follows clearly that no general rule can be laid down respecting the advantage to be derived from saving, or the division of property, without limitations and exceptions; and it is particularly worthy of attention that in cases of this kind, where the extremes are obvious and striking, but the most advantageous mean cannot be marked, that in the progress of society effects may be produced by an unnoticed approximation to this middle point, which are attributed to other causes, and lead to false conclusions.

The tendency to premature generalization occasions also, in some of the principal writers on political economy, an unwillingness to bring their theories to the test of experience. I should be the last person to lay an undue stress upon isolated facts, or to think that a consistent theory, which would account for the great mass of phenomena observable, was immediately invalidated by a few discordant appearances, the reality and the bearings of which there might not have been an opportunity of fully examining. But certainly no theory can have any pretension to be accepted as correct, which is inconsistent with general experience. Such inconsistency appears to me at once a full and sufficient reason for its rejection. Under such circumstances it must be either radically false, or essentially incomplete; and in either case, it can neither be adopted as a satisfactory solution of existing phenomena, nor acted upon with any degree of safety for the future.

The first business of philosophy is to account for things as they are; and till our theories will do this, they ought not to be the ground of any practical conclusion. I should never have had that steady and unshaken confidence in the theory of population which I have invariably felt, if it had not appeared to me to be confirmed, in the most remarkable manner, by the state of society as it actually exists in every country with which we are acquainted. To this test

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 I appealed in laying it down; and a frequent appeal to this sort of experience is pre-eminently necessary in most of the subjects of political economy, where various and complicated causes are often in operation, the presence of which can only be ascertained in this way. A theory may appear to be correct, and may really be correct under given premises; it may further appear that these premises are the same as those under which the theory is about to be applied; but a difference which might before have been unobserved, may shew itself in the difference of the results from those which were expected; and the theory may justly be considered as failing, whether this failure arises from an original error in its formation, or from its general inapplicability, or specific misapplication, to actual circumstances.

Where unforeseen causes may possibly be in operation, and the causes that are foreseen are liable to great variations in their strength and efficacy, an accurate yet comprehensive attention to facts is necessary, both to prevent the multiplication of erroneous theories, and to confirm and sanction those that are just.

The science of political economy is essentially practical, and applicable to the common business of human life. There are few branches of human knowledge where false views may do more harm, or just views more good. I cannot agree, therefore, with a writer in one of our most popular critical journals, who considers the subjects of population, bullion, and corn laws in the same light as the scholastic questions of the middle ages, and puts marks of admiration to them expressive of his utter astonishment that such perishable stuff should engage any portion of the public attention.

In the very practical science of political economy perhaps it might be difficult to mention three subjects more practical than those unfortunately selected for a comparison with scholastic questions. But in fact, most of the subjects which belong to it are peculiarly

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