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 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.

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

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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,

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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:

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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

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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.

Last week, Yoko Ono Lennon, Sean and Julian Lennon and EMI Blackwood Publishing filed a $75,000 copyright and infringement lawsuit against Premise Media and its associated companies, alleging that the makers of Expelled used a fragment of Lennon’s song, “Imagine,” without their permission. The suit also alleges that the association of the song with the anti-evolution polemic damages the reputation of Lennon, his “trademark,” and his heirs.

Premise Media representatives assert their use of the song and its lyrics fell within the “fair use doctrine” of US copyright law, and that they did not need to obtain permission to use “Imagine” in the movie. The filmmakers did obtain permission from other music used in the movie, however.

“The right to quote from copyrighted works in order to criticize them and discuss the views they may represent lies at the heart of the fair use doctrine,” said Anthony Falzone, executive director of the Fair Use Project. “These rights are under attack here, and we plan to defend them.”

Falzone will serve as counsel on the case along with Stanford Law colleagues Julie A. Ahrens and Brandy Karl. The Stanford team will be joined by Roy Hardin and April Terry, partners at the Dallas office of Locke Lord Bissell & Liddell LLP.

The Lennon heirs’ suit, filed in US District Court in Manhattan April 24, demands that Premise cease using the song in the movie, which would require the existing 35 mm prints be recalled from the more than 1,000 theaters showing the film nationally. It also demands a minimum of $75,000 in damages be paid to Lennon’s heirs.