NEW YORK – Yoko Ono wants a judge to imagine a movie challenging the theory of evolution -- but without John Lennon's song "Imagine" in it.
The film's distributors are fighting to keep it in -- and are urging the judge to act quickly so the movie can yet play a role in the presidential campaign this fall.
The judge was expected to rule as early as this week on the legal battle between Lennon's widow and the makers of "Expelled: No Intelligence Allowed."
Ono sued in state and federal court, accusing the movie's producers of infringing on the song's copyright by using parts without her permission.
The movie, which opened on U.S. screens in April and is set for release in Canada on June 6 and on DVD in October, presents a sympathetic view of intelligent design, the theory that the universe is too complex to be explained by evolution alone.
The filmmakers acknowledge they did not ask Ono for permission to use 15 to 20 seconds of the song. But they argue they are protected by the "fair use" doctrine, which permits small parts of a copyrighted work to be used without an author's permission under certain circumstances.
The case is similar to one brought by author J.K. Rowling to stop publication of a Harry Potter encyclopedia by the creator of a Web site dedicated to her popular children's books. A judge is still deciding that case, after a trial earlier this year.
At a hearing in U.S. District Court in Manhattan this week, the filmmakers' lawyer, Anthony T. Falzone, said that if the judge granted Ono's request for an injunction against the film, it would "muzzle" the filmmakers' free-speech rights.
Falzone said 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."
He also said the filmmakers did not believe they needed to ask Ono's permission because they didn't use enough of the song to violate the copyright.
"Why would you ask somebody for permission to criticize their work?" he asked. "It's not likely it's going to be granted."
Ono 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."
Dorothy M. Weber, a lawyer for Ono, her sons Sean and Julian Lennon, and EMI Blackwood Music Inc., said the defendants obtained permission for the other songs in the movie -- a point the judge noted himself.
"We are not saying the film should stop being shown," she said. "We are talking about a small segment of the film we are asking be removed because it violates our clients' rights."
The film features Ben Stein, an actor and former speech writer for Presidents Nixon and Ford, defending intelligent design.
The defendants are Premise Media Corp. of Dallas, Rampant Films of Sherman Oaks, Calif., and Rocky Mountain Pictures Inc. of Salt Lake City.
Judge Sidney H. Stein (no relation to Ben) said he would rule quickly.