A federal judge in Manhattan has told the makers of Expelled: No Intelligence Allowed that they cannot distribute the film any further, until a copyright infringement complaint is heard in court later this month.
The temporary restraining order issued April 30 does not affect existing screenings of the anti-evolution film, which uses a segment of John Lennon’s song, “Imagine,” as an example of “Darwinist” philosophy. Lennon’s heirs filed suit April 24 in US District Court in Manhattan against the producers and distributors of the film, alleging copyright and trademark infringement and requesting monetary damages and an injunction against any showing of the film in its present form.
Expelled is showing in 656 theaters nationally, and has gross box office receipts topping $6 million.
The parties involved in the suit have until May 6 (Wednesday) to produce documents supporting their cases. Premise Media and its co-defendants have until May 14 to argue against the injunction. The plaintiffs, Yoko Ono Lennon, John Lennon’s sons and his publisher, EMI Blackwood, have until May 16 to rebut. Final arguments are due May 19.
Justice is swift, for some of us anyway.
Here is the text of the judge’s order:
ORDER TO SHOW CAUSE
Upon the annexed Affidavit of Yoko Ono Lennon dated April 29, 2008, Declaration of Dorothy M. Weber, Esq. dated April 30, 2008, Affadavit of Darnetha L. M’Baye dated April 29,2008, Declaration of Nancy Weshkoff dated April 29, 2008, together with the Exhibits annexed thereto; the accompanying Memorandum of Law and the Summons and Complaint, and all proceedings heretofore had herein
IT IS ORDERED BY STIPULATION OF THE PARTIES in open court on April 30, 2008 or as otherwise ordered by this Court, Defendants Premise Media Corporation, L.P., C&S Production L.P. d/b/a Rampant Films, Premise Media Distribution L.P. and Rocky Mountain Pictures, Inc. (the “Defendants”), be and they are hereby are enjoined PENDING THE HEARING of the motion for a preliminary injunction from distributing any additional copies of the Movie “Expelled: No Intelligence Allowed,” (the “Movie”) beyond those third party venues which possess and are showing the Movie as of the date of this Order. Defendants ALSO AGREE THAT pending the hearing of the motion for preliminary injunction they WILL NOT MANUFACTURE or PUBLICLY DISTRIBUTE ANY CDs or DVDs of THE MOVIE anywhere in the world.
IT IS FURTHER ORDERED that Plaintiffs will be permitted to conduct expedited discovery. Defendants will produce the following documents on or before _May 6_, 2008: (i) a complete copy of the Movie, (ii) Defendants’ agreements,
licenses and contracts with third parties in connection with rights and permissions for all musical compositions or “clips of third-party film or video footage, still photography, and any and copyrighted materials included in the Movie; (iii) documents and opinions obtained by Defendants in connection with their use of the song “Imagine” in the Movie which support any defense of fair use or first amendment; and (iv) Plaintiff will produce documents on or before May 6, 2008, reflecting the exclusive administration by EMI Blackwood Music, Inc.
IT IS FURTHER ORDERED that defendants show cause before the Honorable Sidney H. Stein, United States District Judge, United States District Court for the Southern District of New York, 500 Pearl Street, New York, New York, Courtroom 23A, on May _19_, 2008, at 4:30 p.m., or as soon thereafter as counsel may be heard, why an order should not be entered, pursuant to Rule 65 of the Federal Rule of Civil Procedure and the Court’s inherent and equitable powers, during the pendency of this action:
1. enjoining and prohibiting the Defendants, their officers, agents, servants, employees and attorneys and all persons in active concert and participation with them, from further use of any portion, or the music and lyrics, in any media, of the musical composition written by John Lennon entitled “Imagine”, or committing any further copyright infringement with respect thereto;
2. recalling for destruction or editing out of any and all references to the Song “Imagine” any and all copies of the Movie from all third-party distributors or editing those copies to remove the infringing Song;
3. awarding to the Plaintiffs costs, attorney fees and such other and further relief as this Court may deem just and proper; and
IT IS FURTHER ORDERED, that good and sufficient service of this Order to Show Cause and other papers on which it is based shall be made, via hand delivery or Federal Express overnight delivery, to be received on or before April 30, 2008 at 5:00 p.m. on Defendants Premise Media Corporation, L.P., C&S Production L.P. d/b/a Rampant Films, Premise Media Distribution L.P. and Rocky Mountain Pictures, Inc. c/o Allen C. Wasserman, Esq., Locke Lord Bissell & Liddell LLP, 885 Third Avenue, 26th Floor, New York, NY 10022 and
IT IS FURTHER ORDERED, that answering papers, if any, shall be served upon Plaintiffs by hand delivering copies thereof to Plaintiffs counsel, Shukat Arrow Hafer Weber & Herbsman LLP, 111 West 57th Street, New York, New York 10019 on or before May _14_, 2008 at 5:00 p.m.; and
IT IS FURTHER ORDERED, that reply papers, if any, shall be filed with the Court and served upon Dendants by hand delivering copies thereof to be retrieved by Defendants’ counsel, on or before May _16_, 2008 at 5:00 p.m..
On consent, no undertaking is required for the T.R.O.
_Sidney H. Stein_
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
April 30, 2008
ISSUED: _4:23 p.m._
While the Lennons and EMI Blackwood Music allege copyright infringement and trademark damage, the makers of Expelled claim their use of “Imagine” falls within the “fair use doctrine” of copyright law, which allows critics and commentators the freedom to use short quotations or excerpts from a work in order to write about it. While the film makers obtained permission from other musicians to use their work in the film, they did not however seek similar permission from Lennon’s heirs.
Soon after the film opened April 18, a blogger at The Huffington Post, falsely accused Yoko Ono Lennon of “selling out” her husband’s legacy, which created a storm of anti-Yoko venom in the blogosphere. The adverse publicity forms part of the lawsuit against Expelled‘s producers and distributors.
Last week, Stanford University Law School’s Fair Use Project agreed to represent the makers of Expelled in court.