That’s Expelled 1, Yoko 0

John Lennon’s heirs have lost their copyright infringement case against the makers of the film, Expelled: No Intelligence Allowed. A federal judge ruled today that the movie can legally use a snippet of Lennon’s song, “Imagine,” without express permission from the copyright holders.

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.

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