You say that artists don’t create but discover. I realize that we are using metaphorical language, but I wanted to point out that this may be limited only to the visual arts. As a fiction writer, a lot of my stories are original and unique; to put it in another way, I doubt that anyone would end up creating a story even remotely similar to what I have written.

If I had never lived, these stories (and these prose versions) would never exist. I don’t claim that the creative powers of artists are superhuman and never derivative. But you should keep in mind that principles of one genre or medium don’t apply towards others.

Some artists believe they have a moral right to veto any such use.

I disagree with that theory on three grounds, all unrelated to the content of either the song or the movie.

First, all art is derivative, so if you allow copyright to last forever, it’s not too long before it starts reducing, rather than increasing, the rate of new works being published (which is, after all, the express purpose for which the Constitution authorizes intellectual property rights).

Second, artists don’t really create anything; they merely discover (read Spider Robinson’s Melancholy Elephants if you need an explanation).

And third, the freedom to make political statements should certainly always trump any IP.

(For what it’s worth, I think both the song AND the movie are stupid, and whenever the song comes on I feel the need to belt out: “Imagine all the monkeys, flying out my butt!”)

If you cannot understand and respect that, you do not understand the Constitution of the U.S. – and arguably cannot respect those who have died defending it.

Fair use is not confined to criticism so in this case it’s entirely fine to use the performance to aid in recognising the work. In another context the performance could be used fairly along with direct criticism of it’s repetitiveness that could be considered to assist in allowing an audience to concentrate on the lyrics.

In the case of photographs or posters it’s been found to be entirely fine to use them simply as background images for decorative purpose in a book related to them. No criticism of the individual images required at all. Also fair use to include small versions of images in visual search engines simply to let people recognise whether the image is the one they are looking for.

Fair use is very broad and if you’re thinking in fair dealing terms that could perhaps be misleading you. The best remedy is reading lots of fair use decisions.

I didn’t see much in the ruling that seems to address the claims of the makers of the movie critically, though.

Judges are not movie critics. The judge’s two thumbs up were for fair use, not the movie.

Furthermore, the song ‘Imagine’ doesn’t seem to be used to critique the song, but to critique PZ Myers and/or his ideas.

It is still commentary and as such is protected by the First Amendment.

The argument that absence of religion leads to dictatorships did not absolutely require ‘Imagine’ to be made either

“O reason not the need! Our basest beggars
Are in the poorest thing superfluous.
Allow not nature more than nature needs,
Man’s life is as cheap as beast’s.”
— Shakespeare’s “King Lear”