"Expelled"'s Copyright Woes

Reports of the National Center for Science Education
Title: 
Expelled's Copyright Woes
Author(s): 
Glenn Branch
Volume: 
28
Issue: 
5–6
Year: 
2008
Date: 
September–December
Page(s): 
19–20
This version might differ slightly from the print publication.

Adding to the controversies around Expelled were two separate allegations that the film infringed on the copyright of The Inner Life of the Cell (a video produced by XVIVO for Harvard University) and of "Imagine" (the 1971 song by John Lennon). These allegations involve contentious matters both of fact and of law, and it is not easy to ascertain to what extent they are valid, especially because neither was ever fully tested in a court of law. But the allegations certainly contributed to the view that the producers of Expelled were less than scrupulous — although they may also have reinforced the view that Expelled tried so hard to foment, that the proponents of "intelligent design" are the victims of systematic persecution.

"The inner life of the cell"

In the course of claiming that the complexity of the cell bespeaks design, Expelled uses a segment of computer-generated imagery of various cellular processes. PZ Myers, who obtained a promotional DVD for Expelled at the showing from which he was excluded (see p 15), argued in a March 23, 2008, post on his blog (available on-line at www.scienceblogs.com/pharyngula/2008/03/about_that_cell_video_in_expel.php) that the segment on the DVD was clearly derived from "The Inner Life of the Cell":

they both have roughly the same layout and the same elements in view; this is a remarkable, umm, coincidence, since these are highly edited, selected renderings, with many molecules omitted … and curiously, they've both left out the same things.

He added:

I previously criticized the Harvard video for a shortcut. That kinesin molecule is illustrated showing a stately march, step by step, straight down the microtubule. Observations of kinesin show it's more complex, jittering back and forth and advancing stochastically. That's a simplification in the Harvard video that is also present in Expelled's version.

Also leveling the charge of plagiarism against Premise Media was Abbie Smith, in a series of rambunctious blog posts at [http://www.endogenousretrovirus.blogspot.com] (she now blogs at www.scienceblogs.com/erv ).

Responding in part to the blogospheric attention to the promotional DVD, David Bolinsky and Michael Astrachan of XVIVO sent a letter (dated April 9, 2008; available here) to the chairman of Premise Media, Logan Craft, stating:

... promotional material for the Expelled film ... clearly shows in the "cell segment" the virtually identical depiction of material from the "Inner Life" video. Among the infringed scenes, we particularly refer to the segment of the Expelled film purporting to show the "walking" models of kinesic activities in cellular mechanisms. The segments depicting these models in your film are clearly based upon, and copied from, material in the "Inner Life" video." ... We have also obtained legal advice that your copying, in virtually identical form, of material in the "[I]nner Life" video clearly meets the legal test of "substantial similarity" between the copied work and our original work.

And they warned that they would pursue legal action if the segment was not removed from Expelled before its scheduled commercial release and if all copies of the "Inner Life" video were not returned to XVIVO.

Premise Media responded first with a note denying the charge posted on the Expelled blog on April 11, 2008, and then with a lawsuit filed on April 14, 2008, in the United States District Court for the Northern District of Texas. In the filing, Premise Media asserted that the promotional DVD contains a different segment than is contained in the final version of Expelled, that both segments were created independently of the XVIVO video, and that even if the segments relied in part on the XVIVO video, the reliance would have been permissible as fair use, as a de minimis use, and as implicitly permitted by XVIVO's making the video available on-line for educational use. Premise Media thus sought a declaratory judgment that neither Expelled nor the promotional DVD "infringe any copyright or other claimed intellectual property rights XVIVO may have, if any, in the Inner Life Video or otherwise." The lawsuit ended uneventfully on June 23, 2008, when the parties agreed to dismiss the case with prejudice (meaning that a lawsuit on the same charges cannot be filed); as part of the settlement, XVIVO agreed not to file suit over the alleged copyright infringement.

Interestingly, a leading light of the "intelligent design" movement was previously accused of misusing "The Inner Life of the Cell". After William Dembski spoke at the University of Oklahoma on September 17, 2007 (see RNCSE 2007 Sep–Dec; [5–6]: 7–8), Abbie Smith noted that his presentation featured portions of The Inner Life of the Cell. She later wrote in a November 20, 2007, post at the Panda's Thumb blog (available on-line at www.pandasthumb.org/archives/2007/11/diexpelled-for.html) that in the version shown by Dembski in Oklahoma:

Harvard/XVIVO[']s narration, all of the science, is whisked away and replaced with a "surrealistic [L]illiputian realm" — "robots", "manufacturing", "circuitry", "nano motors", "UPS labels". Maybe they think it is "okay" because they turned all of Harvard's science into "Magic"! ... From my point of view, as a virologist and former teaching assistant, this isn't just copyright infringement. This is theft and plagiarism.

Smith alerted XVIVO and Harvard University about the possibility of copyright infringement on Dembski's part, and apparently they took action, for in a November 26, 2007, post at his blog (available on-line at www.uncommondescent.com/molecular-animations/news-release-harvards-xvivo-video/, Dembski announced that he was no longer going to use the film in his presentations, although he admitted no wrongdoing.

"Imagine"

A snippet — about fifteen seconds — from John Lennon's 1971 song "Imagine" is on the soundtrack of Expelled, playing as images of Joseph Stalin and the Chinese Red Army are shown along with a verse from the song: "Nothing to kill or die for / And no religion too." Writing on the Huffington Post blog (2008 Apr 14, available on-line at www.huffingtonpost.com/james-boyce/yoko-ono-sells-out-john-1_b_96527.html), James Boyce sharply criticized Lennon's widow for allowing Expelled to use the song: "I guess that the $20 million plus the estate earns every year isn't enough for Yoko Ono." Boyce was forced to retract his criticism on learning that in fact Ono had not given her permission; the Wall Street Journal (2008 Apr 16) reported, "Ms Ono's lawyer ... said in an interview Wednesday: 'It was not licensed.' With respect to the filmmakers, he says: 'We are exploring all options.' It is not clear what remedies if any may be available to Ms Ono." In a written statement, the producers of Expelled admitted that they failed to seek permission, but they called the snippet used "momentary" and claimed that the usage was "protected under the fair use doctrine of free speech."

On April 23, 2008, Yoko Ono, Sean Lennon, Julian Lennon, and EMI Blackwood Music — who own the song "Imagine" — filed a lawsuit against Premise Media in the United States District Court for the Southern District of New York. Noting that Expelled's producers sought permission for other music used in the film, the filing contended that "Defendants have intentionally and willfully used the Song without authorization because they knew that they would likely be unable to secure permission from Plaintiffs and/or because they wished to avoid the costs associated with lawfully licensing these works and paying royalties" and that "Defendants have also intentionally and willfully used the Song in a fashion that suggests to the public that such use was authorized, endorsed or sponsored by the Plaintiffs." EMI Records and Capital Records — which own the recording of "Imagine" used in Expelled — also filed a lawsuit against Premise Media in the New York state court system. Assisting Premise Media in its legal defense was the Stanford Center for Internet and Society's Fair Use Project, which seeks "to provide legal support to a range of projects designed to clarify, and extend, the boundaries of 'fair use' in order to enhance creative freedom."

In both cases, the plaintiffs sought a preliminary injunction prohibiting the continued distribution of the movie, and in both cases, they were unsuccessful. On June 2, 2008, the judge hearing the federal case wrote that the plaintiffs "have not shown a clear likelihood of success on the merits because, on the basis of the current record, defendants are likely to prevail on their affirmative defense of fair use. That doctrine provides that the fair use of a copyrighted work for purposes of criticism and commentary is not an infringement of copyright." (The ruling is available on-line at ). On August 2, 2008, the judge hearing the state case noted that to succeed the plaintiffs would have had to demonstrate a likelihood of success on the merits, a danger of irreparable injury, and a balance of equities in their favor; he ruled that they failed on the first, succeeded on the second, and failed on the third. (The ruling is available on-line at cyberlaw.stanford.edu/system/ files/EMI+v.+Premise+PI+Order.pdf.) The defendants, however, lost a motion for dismissal of the case because they failed to meet their burden of showing that the plaintiffs could not prevail even if the facts were exactly as the plaintiffs allege.

Although the plaintiffs appealed the ruling in the federal case, they also showed signs of being ready to abandon the case, filing a motion on September 5, 2008, for the case to be dismissed with prejudice and without costs or attorney fees, primarily on the grounds that the film was already released with "Imagine" included, and secondarily on the grounds that "the Defendants may lack the financial resources to satisfy a potential judgment." Then, in a press release issued on October 6, 2008 (available on-line at cyberlaw.stanford.edu/node/5876, the Fair Use Project announced that "all of the plaintiffs in both cases have now withdrawn their claims and dismissed their cases"; the Wall Street Journal (2008 Oct 8) confirmed with announcement with Yoko Ono's spokesperson and EMI's lawyer. The Fair Use Project lamented, "There should never have been any doubt the filmmakers who were sued here had every right to use a short segment of a song for the purpose of criticizing it and the views it represents. But the right result came far too late." Why? Because "[t]he mere pendency of these cases caused the film's DVD distributor to shy away from releasing the full film — the version that includes the Imagine segment."

About the Author(s): 
Glenn Branch

NCSE
PO Box 9477
Berkeley CA 94709-0477
branch@ncseweb.org

Glenn Branch is NCSE's deputy director.