The decision clears the way for Expelled‘s creators and marketers to distribute the film in Canada in time for a June 6 opening, and to market DVDs in the fall. The film needs the added revenue boost; it’s bombing in the US.

On April 22, Yoko Ono Lennon, her husband’s two sons, and his publisher, EMI Blackwood, filed a copyright infringement suit in US District Court in Manhattan, claiming that Premise Media — the film’s creator — had used a part of “Imagine” without their permission. The heirs asked for an immediate suspension of showing the film anywhere, recall of all existing copies and at least $75,000 in damages.

Premise Media, meanwhile, contended its use of the song was within the “fair use” doctrine of US copyright law. The Fair Use Project of the Stanford Law School then announced it would defend Premise and the other defendants in court.

Judge Sidney Stein ruled in favor of Premise Media, saying the use of “Imagine” in the film was legal.

Opening April 18 in 1,052 theaters nationwide, Expelled‘s theater count has shrunk to a mere 83 theaters, and its daily gross receipts have sunk below $20,000. It will soon probably drop out of first-run theaters altogether.

Its total US gross box office receipts are more than $7.6 million, which is still probably far less than Premise Media needs to break even on the $3.5 million film. Canadian and DVD sales may push the movie into the black.

NEW YORK (AP) — A judge has promised a fast decision in a lawsuit brought by Yoko Ono to get the song Imagine taken out of a movie challenging the concept of Darwinian evolution.

A lawyer for the movie’s distributors has warned that the litigation could wreck the movie’s political message by preventing it from impacting viewers in the lead-up to the U.S. presidential campaign.

The movie, Expelled: No Intelligence Allowed, features Ben Stein challenging Darwinian theories and suggesting life could have originated through intelligent design. About 20 to 30 seconds of the song are played in the movie.

Ono has accused the movie’s producers of infringing the song’s copyrights by using it without her permission, giving the impression that the Lennon family had authorized it.

US District Judge Sidney Stein’s ruling will settle whether the producers of the film can release it to Canadian theaters and to DVD as planned. The Canadian premiere is scheduled for June 6, according to Premise Media’s attorney Anthony Falzone. DVD rights have to be finalized by the end of this month for an October release, he said.

As for the political impact of the film, this decision will have little effect. The movie is a dog. It has been losing audiences and theaters steadily since it opened April 18, despite all the publicity — good or bad — about it. If the producers of this film think it has any political impact, they’re dreaming.

The suit is only part of the movie’s legal woes, stemming from its use of a short clip of John Lennon’s song, “Imagine.” The producers failed to obtain permission to use the song, and Lennon’s heirs and publisher are crying foul.

Lennon’s widow, Yoko Ono Lennon, his two sons, and EMI Blackwood filed a copyright infringement suit April 22 in US District Court in Manhattan demanding at least $75,000 in damages, a complete recall of the existing version of the movie, now playing in about 200 theaters, and an injunction against further distribution of the movie.

EMI Blackwood and Capitol Records followed that suit up with another in state court, demanding a preliminary injunction against further distribution of the movie.

There were hearings yesterday in both the federal and state cases. In the state case, Judge Richard Lowe stayed a temporary restraining order issued April 30 barring further distribution of the movie until he rules on the preliminary injunction issue. There’s no word yet on the federal case, brought by Yoko and Lennon’s sons.

Premise Media contends that the use of the Lennon song was well within the “fair use” policy of US copyright law. The case attracted the attention of Stanford Law School’s Fair Use project, which is defending Premise, et alia, in federal and NY state courts. Lawyers for the defendants argue that using the song in the movie is an exercise of their free speech rights, as well as fair use.

The EMI suit and the response to it are now on Scribd.com.

Here’s the EMI suit:

and the response to it.

The movie opened April 18 with a great deal of hullabaloo in 1,052 theaters and pulled in an impressive (for a schlockumentary) box office receipts of $2.97 million. Its receipts and theater count have dropped precipitously since then, despite the predictions of its creators that it would be a box-office smash.

Instead it will probably fade into DVD obscurity, once certain legal problems are resolved. Currently, the makers of the film are under a court order not to distribute the flick any further while a copyright infringement suit is settled.

Premise Media, the creator of the movie, licensed several songs, but failed to obtain permission from the copyright holders of John Lennon’s “Imagine.” A short section of the song is used as a foil to suggest that “Darwinism” inevitably leads to atheism.

Lennon’s family and publisher filed suit against Premise Media and its associates April 24 alleging copyright and trademark infringement, asking for at least $75,000 in damages and the immediate withdrawal of the movie in its present form from all theaters. A few days later, a federal judge issued a temporary restraining order preventing further distribution of Expelled, including DVD releases.

The Fair Use Project of Stanford Law School jumped into the fray, saying it would defend Premise Media and the other defendants, to defend their “fair use” and free speech rights. Hearings on the case are scheduled for today and tomorrow.

The legal tussle revolves around the movie’s use of part of John Lennon’s song, “Imagine,” to suggest how “Darwinism” might lead to atheism. Reports vary as to the length of the clip, from 10 to 25 seconds, but in any event the copyright holders to the song were not amused.

Lennon’s widow, Yoko Ono Lennon, and sons, Sean and Julian, along with his publisher, EMI Blackwood Publishing, filed a copyright and trademark infringement suit April 22 in US District Court in Manhattan, demanding the current version of the film be pulled from theaters and that further distribution of the film be barred. They also asked for at least $75,000 in damages.

Until he hears both sides of the case next Monday, District Court Judge Sidney Stein issued a temporary restraining order April 30 preventing Expelled‘s makers from distributing the movie to any more theaters or in DVD form. His order did not affect the movie’s screenings (dwindling as we speak) already in place.

EMI apparently also filed a similar suit in NY state court, though I do not have those details yet.

Premise Media, the producers of the anti-evolution film, contends that its use of the Lennon clip was permissible under the fair use doctrine of US copyright law, which gives critics and commentators some leeway in quoting copyrighted material.

The Fair Use Project announced just a few days after the Lennon suit that it would defend Premise Media and its co-defendants. Yesterday, the project’s exec, Anthony Falzone, explained why.

Expelled: No Intelligence Allowed is a controversial documentary about a contentious issue: whether proponents of intelligent design are being unfairly silenced in academia and beyond. It has been shown on more than 1000 theater screens nationwide, and its producers have drawn praise from some circles and scorching criticism from others. Right or wrong, good or bad, it’s a film that explores important issues of free speech, faith and science.

Yoko Ono Lennon has sued the film’s producers in federal court because the film uses a fifteen second clip of the John Lennon song “Imagine.” EMI, the record label that asserts ownership in the recording of song, has also sued the producers in state court. Both seek an immediate injunction forcing the removal of “Imagine” from the film.

We have agreed to defend the producers of the film in both actions. The reason is simple. The Film uses “Imagine” to critique, explicitly and implicitly, what the film suggests is the overtly anti-religous message embodied in the song, and to respond to this message by suggesting the absence of religion from society can have terrible social consequences. The right to quote from copyrighted works in order to criticize them and discuss the views they represent lies at the heart of the fair use doctrine. The lawsuits filed by Ono and EMI threaten important free speech rights that need to be defended.

Stay tuned for more information as the case develops.

Well, fair enough. I’m no legal eagle, but Premise et alia were asking for trouble when they failed to obtain permission to use the clip while obtaining similar permission for their use of other musicians’ work. They certainly have free speech rights — the whole movie is a crock, but hey, it’s a free country — but the question is whether they played by the rules.

Meanwhile, one could make the argument, as many have, that Yoko is lawsuit-happy, and that the suit is to some extent frivolous. She is pissed that a Huffington Post blogger erroneously suggested that she had “sold out” by allowing the song to be used in the movie, which generated a storm of anti-Yoko sentiment on the Internet. The blogger retracted his statement, but too late.

The Lennon suit alleges that the controversy harmed the reputation and trademark of John Lennon, his heirs and the special meaning of his “signature” song.

So, on the one hand, we have the film makers contending their criticism of “Imagine” was legal under Constitutional and copyright law. On the other, we have Lennon’s heirs arguing the clip was used without their permission in such a way that would harm their reputations, infringe their copyright and damage the Lennon trademark.

The outcome will be interesting, as it might clarify (or not) the extent to which critics can quote copyrighted material. If the case goes Yoko’s way, Premise Media will have to pull the existing version of the film now playing in about 400 theaters. Since its theater count has been dropping like a rock each week, such a recall would pretty much kill the movie’s theatrical engagement outright.

Then again, it might be a mercy killing.

Box Office Mojo estimates the movie had weekend gross box receipts of $302,000 for the 402 theaters still screening it. Expelled opened April 18 in 1,052 locations and pulled in almost $3 million its first weekend.

Since then, weekend receipts have dropped by about half each week. Total gross receipts are now estimated to be $7.2 million.

I had always assumed it was Nazi soldiers “following orders.” My bad.

Watch it and weep. Someone took Ben Stein’s brain.