Can Yoko sue "Expelled" under foreign copyright laws?

Famous last words (is he saying "I don't deserve to die" or "I could have kept myself out of this chair if I were a lawyer"?)

A coin-operated, do-it-yourself electric chair. "When a coin is inserted, and the switches are pulled, the condemned man twitches and jerks in the chair. Sparks fly and the odor of burning hair is emitted from the panel."

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As a result of the lifting of the temporary restraining order in the federal lawsuit against "Expelled," the way is now clear for the movie to open as scheduled in Canada on June 6. Some people are now asking if Yoko can sue the "Expelled" producers under copyright laws in foreign countries.

You will never see me say "I am not a lawyer," often abbreviated "IANAL." In fact, the expression "IANAL" is one of my pet peeves. Telling laypeople that they can't understand the law sends a message to young people that they shouldn't bother to get educations. When I don't know something about the law, I look it up, just like a lawyer would.

Wikipedia says about the Berne Convention,

The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement about copyright . . .

Since almost all nations are members of the World Trade Organization, the Agreement on Trade-Related Aspects of Intellectual Property Rights requires non-members to accept almost all of the conditions of the Berne Convention.

As of April 2008, there are 163 countries that are parties to the Berne Convention

The Berne Convention requires its signatories to recognise the copyright of works of authors from other signatory countries (known as members of the Berne Union) in the same way it recognises the copyright of its own nationals, which means that, for instance, French copyright law applies to anything published or performed in France, regardless of where it was originally created.

The USA became a member of the Berne Union in 1989.

One of the questions that arises is: if "Expelled" is shown or sold in a foreign country, does that country's copyright law apply just to the movie itself or does it also apply to copyrighted works contained in the movie?

I investigated further by looking at the provisions of the Berne Convention.

Articles 5(1) and 5(2) says,

(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

One of "the rights specially granted by this Convention" is "fair use." The applicable parts of Article 10 [Fair Use], say,

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

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(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon.

Article 10, quoted above, says nothing about applying a foreign country's laws to claims of fair use -- all that is required is that the borrowing of other works be "compatible with fair practice" and that the extent of the borrowing "does not exceed that justified for the purpose." "Expelled"s use of "Imagine" easily satisfies these criteria -- if "Expelled"s use of "Imagine" is not fair use, then nothing is fair use. Also, it is reasonable to expect that countries should give "full faith and credit" to the originating country's determination of fair use, because otherwise chaos would result. Also, Article 10(3) above is satisfied by the credits shown at the end of the "Expelled" movie.

Article 6bis says,

(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

"Expelled" did not distort, mutilate, or otherwise modify "Imagine." As for "other derogatory action," "Expelled" did not misrepresent John Lennon's actual views, particularly in view of John Lennon's statement -- made several years prior to recording "Imagine" -- that the Beatles were "more popular than Jesus."

Article 19 [Right to Claim Greater National Protection] says,

The provisions of this Convention shall not preclude the making of a claim to the benefit of any greater protection which may be granted by legislation in a country of the Union.

I think that the above loophole would be unavailable to Yoko Ono in all or almost all foreign countries because all or almost all foreign countries would consider this to be fair use. Also, this loophole appears to contradict Article 5(2) -- cited above -- in regard to fair use. And under Article 33 [Disputes among countries], the USA may be able to dispute another country's finding that this is not fair use.

In short, IMO Yoko Ono cannot dispute "Expelled"s fair use claim in foreign countries.
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