Oh no, Ono!: Expelled (the film about the intelligent design guys) can still be shown

On Monday, John Lennon's widow Yoko Ono lost her attempt to prevent the distribution of Expelled because of an excerpt from Lennon's "Imagine." Ono is appealing, and doubtless, this high-profile case will impact other copyright issues. But here's some gen for now:

From the Associated Press:

NY judge: Film can use John Lennon song By TOM HAYS

[ ... ]

U.S. District Judge Sidney Stein ruled that if the case went to court, the filmmakers would probably win under the fair use doctrine.

"That doctrine provides that the fair use of a copyrighted work for the purposes of criticism and commentary is not an infringement of copyright," Stein wrote in his decision in Manhattan federal court.

[ ... ]

At a hearing last month, Falzone had argued that the segment of the song in the film — "nothing to kill or die for, and no religion too" — was central to the movie because "it represents the most popular and persuasive embodiment of this viewpoint that the world is better off without religion."

The film, he said, is "asking if John Lennon was right and it's concluding he was wrong."

Ono had countered by saying, "One of the most basic rights I control by reviewing and choosing licenses is the right to say `no.' The filmmakers simply looted me of the ability to do so."

Hmmm. It's a bit more complex than Ono is making out, because the right she is claiming undermines the opportunity to critique her late husband's work, which is NOT one of the purposes of intellectual property rights.

In fact, it's a bit like the Canadian "human rights" regime (which is why I no longer have a combox, unfortunately). If you want to know more about that, go here, but actually the worthwhile end of the Canadian blogosphere is lighting up across the board : Here, for example, are also
Jay Currie
Small Dead Animals
Mark Steyn
Free Mark Steyn
Five Feet of Fury

Back to our topic, from the BBC news: Ono loses Lennon song legal bid:

Ono, her son Sean Ono Lennon, and Julian Lennon - Lennon's son from his first marriage - had sought a preliminary injunction before the film gets a wider release.

But Mr Stein ruled that if the case went to court, the film-makers would probably win under laws allowing the use of copyrighted material for commentary or criticism.

[ ... ]

The film presents a sympathetic view of intelligent design - the theory that the universe is too complex to be explained by evolution alone.

It opened in the US in April and is set for release in Canada later this month and on DVD in October.

Note: Intelligent design does not say, strictly speaking, that the universe is too complex to be explained by evolution alone. Lots of things are very complex - like a pile of gravel, for example. A pile of gravel could evolve if someone dumped a bit more every day. What differentiates some types of complexity is that they seem to require intelligence. A good novel and life in the universe have more in common in that respect than a pile of gravel has with either of them.

From the NY Post: IMAGINE! YOKO LOSES BID TO NIX SONG By KATI CORNELL June 3, 2008 --

Oh no, Yoko.

A federal judge unplugged a bid by John Lennon's widow to stop the producers of a movie disputing Darwin's theory of evolution from using a snippet of the former Beatle's iconic song "Imagine."

Yoko Ono, 75, sued the makers of "Expelled: No Intelligence Allowed," claiming the movie uses an excerpt of the song without her permission and wrongly suggests that she somehow authorized or sponsored the film.

But Manhattan federal Judge Sidney Stein found in favor of the film's producers, noting that the 15-second clip from "Imagine" is used for a "transformative purpose" that sets out to "criticize the song's message."

From The Press Association: Yoko loses Lennon's song court bid

Yoko Ono has lost her court case to block the use of John Lennon's song Imagine in a film challenging the theory of evolution.

Lennon's widow had sued the makers of Expelled: No Intelligence Allowed, saying they used parts of the song without her permission.

Federal Judge Sidney Stein said the filmmakers were protected under the "fair use" doctrine, which permits small parts of a copyrighted work to be used without an author's permission under certain circumstances.

And at Uncommon Descent, Dave Scot writes,

Yoko Ono’s copyright infringement suit against the makers of Expelled: No Intelligence Allowed for using 15 seconds of the Lennon song Imagine was thrown out of court. Of course we all knew it was no more than a nuisance suit brought because Ono didn’t approve of the film’s negative view of the philosophy expressed in Imagine.

And here's the Fair use Project (who represented Expelled):

“This case is not just about fair use, it is about free speech,” explained Anthony Falzone, executive director of the Fair Use Project and lead counsel on the case. “The right to use portions of copyrighted works in order to criticize them and discuss the views they represent lies at the heart of the fair use doctrine because that right is essential to the free flow of ideas, thoughts, and debate.”

What's that? Right to criticize and discuss? A stake through the heart of Darwinism!

Imagine Yoko Ono Shutting Down Showings of Expelled?

So far it is imaginary.

Ono is seeking at least $75,000 in damages and injunctive relief.

Her case turns on the use of some lines from Ono’s late husband John Lennon’s ”Imagine”*.

On April 30, 2008, a New York-based United States judge, Sidney Stein, enjoined “further distribution” of Expelled until Yoko Ono’s lawsuit for copyright infringement is heard.

A legal eagle friend has shown me a copy of the judge’s order, with hand-scrawled changes. It means that new copies of the film can’t be sent out until the hearing later this month, but so far as I can see, the current copies of the film can continue to be shown.

*While finding the link to Lennon and “Imagine” on YouTube, I noticed quite a number of attacks on Expelled. But so far no one seems to have pirated footage of the film, or at least not that they are crowing about.

I almost think that’s too bad. I am getting impatient. So many American friends have seen it, but it is not coming to Canada till at least June 6.

While we are here, how is Expelled doing after 17 days?

Well, as I write this (7:18 EST), it is #6 in political documentaries, #13 in documentaries, and #10 in Christian documentaries at MOJO. Here’s the daily calendar view. I don’t yet have more than an estimate for this weekend's box office, but it comes out to:

TOTAL LIFETIME GROSSES: Domestic: $6,619,000 est.

About the people who are confidently predicting doom for Expelled, a friend writes to say that they crack him up:

I believe it's #13 of all time in box office receipts after only two weekends and it's possible, if not likely, it will crack into the top ten before it's done. $6 million going into the third weekend is tanking? This person needs to check out "Where in the world is Osama Bin Laden" which came out on the same weekend as EXPELLED. I don't think Spurlock's bomb (the guy who brought you Supersize Me) has even made $300k yet. That's a poor performing film. By contrast, EXPELLED is a huge success.

By the way, I wouldn’t pay much attention to reader opinion at the MoJo site:

GRADE THIS MOVIE
Readers B- (362 votes)
Your Grade Log in
GRADE BREAKDOWN
As: 229 63.3%
Bs: 12 3.3%
Cs: 3 0.8%
Ds: 3 0.8%
Fs: 115 31.8%

In other words, what you think of Expelled depends on whether you think that scientists should be allowed to talk about evidence of design in the universe or life forms. But if you don’t think so, you were less likely than others to see the film. In fact, I have no idea what proportion of the 31.8% who failed the film did in fact see it. There would really be no need for them to do so, of course; they could always watch another film and go home and rant about Expelled anyway.

Expelled ten days later ...

According to Box Office Mojo, Expelled is estimated to have

- earned $5,282,000 in 10 days.

- it is currently ranked 6th in political documentary, 12th in Christian, and 15th in documentary.

- It is currently ranked 13 in films, but every film ranked above it was released in far more theatres.

Meanwhile, John Lennon's widow, Yoko Ono, is suing the Expelled filmmakers over their use of his 1971 song Imagine, ranked all time # 3 by Rolling Stone. The producers claim they cited it under fair use for commentary and criticism.

The Expelled producers replied to Ms. Ono, "Let it be," adding,

Premise did not pursue a license for the song and had no obligation to do so. Unbiased viewers of the film will see that the Imagine clip was used as part of a social commentary in the exercise of free speech. The brief clip - consisting of a mere 10 words - was used to contrast the messages in the documentary and was not used as an endorsement of EXPELLED.

But the irony of this lawsuit was not lost on the film's star Ben Stein, "So Yoko Ono is suing over the brief Constitutionally protected use of a song that wants us to 'Imagine no possessions'? Maybe instead of wasting everyone's time trying to silence a documentary she should give the song to the world for free? After all, 'imagine all the people sharing all the world...You may say I'm a dreamer But I'm not the only one I hope someday you'll join us And the World can live as one.'"

John P. Meyer at Pegasus News thinks, as I do, that

Frankly, it looks like the instigators of the lawsuit are playing right into the hands of the filmmakers, who're naturally (and in time-honored fashion) taking the approach that "all publicity is good publicity."

Apparently, Ms. Ono is trying to stop the distribution of Expelled, but there she certainly hasn't the advantage of originality. However, at least one group of fans has sent me a message urging that people see the film soon in case she succeeds.

In case she succeeds? I can't think of a better way to be sure that a billion people see it.

Meanwhile, if you want to hear and see Lennon's Imagine, go here, and here's Lennon with the other Beatles, in Let it be.