Pharyngula

Peter Irons drafts a letter

One thing I know: I never want to piss off Peter Irons, Esq., Attorney at Law.

Re: Copyright infringement in “Expelled: No Intelligence Allowed”

Dear Mr. •••••:

This letter will constitute notice to you, as Chairman of Premise Media Corporation, of the copyright infringement by your corporation, and its subsidiary, Rampant Films, of material produced by XVIVO LLC, in which XVIVO holds a copyright.

It has come to our intention that Premise Media and Rampant Films has produced a film entitled “Expelled: No Intelligence Allowed,” which is scheduled for commercial release and distribution on April 18, 2008. To our knowledge, this film includes a segment depicting biological cellular activity that was copied by computer-generated means from a video entitled “The Inner Life of a Cell.” XVIVO holds the copyright to all the models, processes, and depictions in this video, and has not authorized Premise Media or Rampant Films to make any use of this material.

We have obtained promotional material for the “Expelled” film, presented on a DVD, that clearly shows in the “cell segment” the virtually identical depiction of material from the “Inner Life” video. 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 been advised by counsel that this segment in your film constitutes an actionable infringement of XVIVO’s intellectual property rights, as protected by federal statutes, including Section 106 of the Copyright Act, the Visual Artists Rights Act of 1990, and the Digital Millenium Copyright Act of 1998. Each of these statutes provides for judicial enforcement of their provisions, with substantial civil penalties for their infringement.

We have also obtained legal advice that your copying, in virtually identical form, of material in the “inner Life” video clearly meets the legal test of “substantial similarity” between the copied work and our original work.

This letter will also serve as notice to you that XVIVO intends to vigorously and promptly pursue its legal remedies for your copyright infringement, unless and until Premise Media, Rampant Films, and their officers, employees, and agents comply with the following demands:

  1. That Premise Media, Rampant Films, and its officers, employees, and agents remove the infringing segment from all copies of the “Expelled” film prior to its scheduled commercial release on or before April 18, 2008;

  2. That all copies of the “Inner Life” video in your possession or under your control be returned to XVIVO;

  3. That Premise Media notify XVIVO, on or before April 18, 2008, of its compliance with the above demands.

We have been advised, by a telephone conversation with Mellie Bracewell of Premise Media on April 8, 2008, that an e-mail transmission of this letter to her will be promptly forwarded to you. A hard copy of this letter, on XVIVO stationary, will also be sent to you today by express delivery.

We are sure that you will want to avoid legal action in this matter, and urge you to promptly notify us of your compliance with the above demands. You may do so by return e-mail, directed to david@••• or mike@•••, followed by a hard-copied letter indicating your compliance with the above demands.

Sincerely,

David Bolinsky
Partner and Medical Director
XVIVO LLC

Michael Astrachan
Partner and Creative Director
XVIVO LLC

Cc: Peter Irons, Esq.
Attorney at Law
2551 North Valley Road
Greenville CA 95947

Comments

  1. #1 Aureola Nominee, FCD
    April 9, 2008

    Two nits to pick:

    “It has come to our ATtention”

    and

    “A hard copy of this letter, on XVIVO stationEry,…”

  2. #2 Sven DiMilo
    April 9, 2008

    I can’t remember when a legalese threat gave me such glee.

  3. #3 HadasS
    April 9, 2008

    *Evil laughter*

  4. #4 Glen Davidson
    April 9, 2008

    Wow, that’s great.

    I really thought that it wouldn’t be worth pursuing, despite the fact that it looks like a pretty clear copyright violation.

    But if they proceed with the lawsuit, that’s only too good–a chance to siphon off any possible profits (don’t underestimate the number of people who might go at the urging of their pastors, etc.), making the point that these people are dishonest through and through, and perhaps even getting it across to some folk that IDists are incapable of doing anything original, but have to steal from the real scientists.

    Go Peter Irons!

    Glen D
    http://tinyurl.com/2kxyc7

  5. #5 skyotter
    April 9, 2008

    but Aureola, you missed the split infinitive …

  6. #6 MAJeff, OM
    April 9, 2008

    *giggle**snort*

  7. #7 Jsn
    April 9, 2008

    Aureola’
    You’re funny. Does that make you a nit wit?

  8. #8 Sili
    April 9, 2008

    First a a new series of Beyblade is announced, and now this?

    Happy happy joy joy.

  9. #9 Steven
    April 9, 2008

    Peter Irons FTW

  10. #10 Bill
    April 9, 2008

    This day just keeps getting better and better.

  11. #11 ERV
    April 9, 2008

    They should have made a documentary on the making of EXPELLED.

    It would rival ‘Spinal Tap’.

  12. #12 Tyler DiPietro
    April 9, 2008

    Dude I don’t get it. Is god like, testing our reason by tempting us to believe, or something?

    Look for rolling shorters at my place once the spin and damage control starts.

  13. #13 Steven Alleyn
    April 9, 2008

    I’d be willing to bet money that they don’t remove the segment, the film makes a killing and that they finally settle out of court for a pittance.

  14. #14 Paul Johnson
    April 9, 2008

    the typos are probably the result of a dumbass intern typing it up.

    this letter makes me so happy

  15. #15 PalMD
    April 9, 2008

    I LOVE this guy! And if he only got a hold of the Seidel case…

  16. #16 Kevin Dorner
    April 9, 2008

    It’s unfortunate that this bit of infringement was seen before release. It would have rated higher on the schadenfreude scale if they’d waited until Expelled’s final prints had been made and distributed, forcing cancellation of the premiere, recall of all prints and a (worse than than the usual standards) hack job to remove the offending segment.

  17. #17 rmp
    April 9, 2008

    snap!

    Awesome.

  18. #18 Cheezits
    April 9, 2008

    Seems a shame if they end up removing that segment. Because it sounds like it was just about the only part worth watching.

  19. #19 DanioPhD
    April 9, 2008

    OOOOOHHHHHHHHH YEEEEEEEEEAAAAAAAAHHHHHHHHHH!

    *Kool Aid pitcher crashes through the wall of Premise Media’s conference room, holding a Cease and Desist order*

    (Because, you know, they all like the Kool Aid so much in there)

  20. #20 danley
    April 9, 2008

    EEEEEEEwwwwwwww. Trouble for popcorn sales at the Steinfest.

  21. #21 Ace of Sevens
    April 9, 2008

    They thought they could get around copyright by making a knockoff. It doesn’t work that way. You have to make an original work. Tracing is still a violation.

  22. #22 Lisa J
    April 9, 2008

    That’s fantastic!

  23. #23 Reginald
    April 9, 2008

    Is this real?

    I want to believe it’s real but I don’t have a lot of experience in this field and I’m always superskeptical so can someone point me to anything more about it? Or just point me to something in the letter that confirms it must be real?

  24. #24 CalGeorge
    April 9, 2008

    The cells have been expelled – now there’s absolutely nothing left but crap!

    Woooooo!

  25. #25 Ian
    April 9, 2008

    Kevin:

    It’s unfortunate that this bit of infringement was seen before release. It would have rated higher on the schadenfreude scale if they’d waited until Expelled’s final prints had been made and distributed, forcing cancellation of the premiere, recall of all prints and a (worse than than the usual standards) hack job to remove the offending segment.

    I imagine they probably already have — the release is only 9 days away. But actually, I think this would have been better earlier. As it is, I would guess it will make more financial sense for Premise Media to leave the footage in and just reach a settlement with XVIVO. Assuming, of course, that XVIVO is willing to do that.

  26. #26 Quidam
    April 9, 2008

    But … but … it’s not a copy. Ours is brown

  27. #27 Denis Loubet
    April 9, 2008

    No. The name Aureola would make one a tit-wit.

  28. #28 firemancarl
    April 9, 2008

    Hells yeah! Get ‘em Peter!

  29. #29 Quidam
    April 9, 2008

    Hmm href link didn’t work
    href=http://img85.imageshack.us/img85/9669/jewlyingforjesuscy8.jpg

  30. #30 Aureola Nominee, FCD
    April 9, 2008

    skyotter:

    If split infinitives were good enough for Shakespeare, who am I to reject them?

    Jsn:

    No, it makes me a grammar nazi. ;-)

  31. #31 peter
    April 9, 2008

    Ian@25

    not necessarily, last minute prints are not uncommon, when I was a projectionist, we got prints with only a day to spare… the processing company I used to get my film finished at had stories about last minute printing.

    though admittedly most examples of last minute volume prints that I’m aware of tend to be special effects heavy large budget things. usually because they were still working on it at the last minute.

    out of curiousity, weren’t the previews projected on video?

  32. #32 Doc Bill
    April 9, 2008

    Expelled was scheduled for release much earlier than April 18, rather February 8. The “cell as a city” sequence was identified as a possible copyright infringement months ago.

    Subsequently, Expelled changed the release date unexpectedly and for no reason. However, it is reasonable to assume they, the producers of Expelled, realized that the “cell as a city” sequence was, indeed, a copyright infringement and sought an alternative, which would take time to produce and insert into the film.

    But, since none of the Expelled producers are scientists, nor do they have access to real scientists, all they could attempt was to copy the original animation and change the color.

    Nice try.

  33. #33 ERV
    April 9, 2008

    Reg– Its real.

    Wait 24 hours. Evolution News & Views will confirm it for you. I mean, you know the DI is going to back up EXPELLED, right? Just like they backed up the school board at Dover? Right?

  34. #34 Brad
    April 9, 2008

    The “canceled” screening in Tempe certainly had a knock off of the XVIVO video. It was longer than in any of the promotional material I’ve seen and nearly identical in content to Inner Life of a Cell. Sure the colors were changed and the inspirational music sound track was different, but there’s no mistaking where it came from.

  35. #35 Eamon Knight
    April 9, 2008

    I was waiting for this to happen — from reports, it sounded as if the Excreted sequence was basically just cribbed from the XVIVO film. IANAL, but even I know that’s still plagiarism. You’d think the Excreted folks would know that — but that would assume they had some intelligence (thus the unintentional irony of the subtitle grows by the day).

    Prediction: this will be spun in the Usual Circles as one more attempt by the Darwinist Establishment to supress the ID message.

  36. #36 Will Davies
    April 9, 2008

    I believe the phrase is “Eat that, you shits!”

    Peter Irons is a gentleman of awesome stature.

  37. #37 James F
    April 9, 2008

    Oh, to be a fly on the wall when the Expelled producers read this. Maybe something a little like this.

  38. #38 Ichthyic
    April 9, 2008

    I really thought that it wouldn’t be worth pursuing, despite the fact that it looks like a pretty clear copyright violation.

    I feel vindicated, having argued for a closer look at this issue as soon as it was brought up.

    not that it’s worth much.

  39. #39 Scote
    April 9, 2008

    Actually, this is really stupid.

    While it does appear that Expelled made their own very similar version of the XVIVO animation they did create the 3d modeling from scratch. Facts can’t be copyrighted. While the XVIVO video has a layout and sequence of events that have been generally copied Expelled didn’t use any of their footage or graphics. I really don’t think we want to make copyright laws stricter in this sense, for what Expelled does is similar in some ways to reading about a fact and then writing up a description in your own words. Oh sure, you can argue both ways, but I think this kind of legal action will bite back and litigious IDers’ will try and use the same tactics against us.

  40. #40 Ichthyic
    April 9, 2008

    Oh sure, you can argue both ways, but I think this kind of legal action will bite back and litigious IDers’ will try and use the same tactics against us.

    example?

    I really, really, can’t think of anything that would work in reverse.

  41. #41 potamologist
    April 9, 2008

    this is just another “big Science” conspiracy trying to hide the “Truth”.

    LOL

  42. #42 James F
    April 9, 2008

    #39

    Scote,

    The problem is that such a general idea as kinesin motion can be portrayed in many ways, depending on what you what to emphasize. Look at the animation and graphics from Ron Vale’s lab at UCSF. There are too many similarities, IMO; it’s a rip-off. I’m a scientist and not a lawyer, however, so I’d like to hear from the legal eagles around here.

  43. #43 kim boone
    April 9, 2008

    “THUD”

  44. #44 BillCinSD
    April 9, 2008

    I’m pretty much with Scote here. The DMCA is evil enough on it’s own accord, no beed to make it even worse.

  45. #45 Kevin Dorner
    April 9, 2008

    Having never seen “The Inner Life of a Cell” I Googled it to try to find something of better-than-YouTube quantity, and, lo, I did: http://www.studiodaily.com/main/technique/tprojects/6850.html
    Yes, it’s pretty damn impressive, and moreso when not overlaid with twaddle.

    This handy FireFox plugin will allow it and any other streaming video (ie YouTube) be downloaded for better viewing: https://addons.mozilla.org/en-US/firefox/addon/3006

  46. #46 Tyler DiPietro
    April 9, 2008

    “…for what Expelled does is similar in some ways to reading about a fact and then writing up a description in your own words.”

    The depiction of the facts (e.g., manlike kinesin high-wiring on a microtuble) was non-obvious and novel on the part of XVIVO, and clearly copied in Expelled. The comparison just doesn’t hold.

  47. #47 ERV
    April 9, 2008

    Facts can’t be copyrighted.

    Nothing in ‘Inner Life’ is a ‘fact’. I can think of at least a dozen different ways to model the movement of kinesin. Yet miraculously, EXPELLEDs kinesin looks exactly like ‘Inner Life’s.

    The Golgi apparatus is not a pulsing, glowing blob. Yet there it is, in both animations, pulsing and glowing.

    The actin network at the cell membrane does not look like a diamond crystal structure. And yet……..

    You cant copyright nature, either, but you cant put a pair of yellow shorts on Mickey Mouse and pretend he was your idea.

  48. #48 Stanton
    April 9, 2008

    Oh sure, you can argue both ways, but I think this kind of legal action will bite back and litigious IDers’ will try and use the same tactics against us.

    Haven’t they already done so and went down in flames doing so?

  49. #49 True Bob
    April 9, 2008

    Danio, howzabout a nice Hawaiian punch? #19 made pretty pictures in my mind.

  50. #50 infoaddict
    April 9, 2008

    While I am gleeful at the possibility that the “film” gets in trouble for playing fast and loose with copyright, as well as with people’s innocently-supplied interviews (not to mention sanity, truth, history, and intelligence), I do despair that an apparently proper formal legal letter can contain such glaring spelling/grammatical errors. My standard practice, when viewing such letters, is to apply extreme scepticism about the actual legal credentials of the person/s affixing their name to the document. (I help moderate a popular forum and so have seen my share of legalistic threats about “take this down or else”).

    Let’s be honest; if this letter had appeared threatening a blog with cease-and-desist for some reason, most commentators would pull it to bits for its slightly wonky sentence structure and spelling. That it’s on the side of right and justice (etc and so on) can’t excuse the problems with its content, or the possibility that it could be taken less seriously because of those problems.

    Yes, spelling DOES matter, when you’re threatening to sue people. Otherwise, they’ll just laugh at you for being ignorant (which, in the current context, should make the irony-meter fall off the scale :) ).

  51. #51 Ichthyic
    April 9, 2008

    This handy FireFox plugin will allow it and any other streaming video (ie YouTube) be downloaded for better viewing:

    why not just go to the source:

    http://multimedia.mcb.harvard.edu/

  52. #52 Bad
    April 9, 2008

    That didn’t work either. Here’s a link to your original messageboard post with the image (which is chuklicious as always).

    I’ve re-reproduced it as well. If, based on that, you need to serve a legal complaint and motion for injunction based on my copyright infringement of your work, I do request that you include some cookies with your complaint: I’m hungry.

  53. #53 Holbach
    April 9, 2008

    Sic the retards!

  54. #54 Cyde Weys
    April 9, 2008

    #39, Scote: How will the IDers use it against us? Are we copying their footage scene-for-scene? I don’t think so.

  55. #55 Michael X
    April 9, 2008

    Scote,
    The artistic element behind how any facts are displayed is what is being discussed. Just as there are a million ways to visually take a tour through the solar system, so too are there a million ways to visually depict the inner life of a cell. That artistic depiction is intellectual property (award winning no less) and is not up for grabs by any group that attempts to copy it in the most obvious manner, and call it their own. Arguing that they had to make 3D models themselves, thus the work is their own, is like the plagiarist arguing that he had to type in the words from the book he was copying, and thus the product (the book) is now his. It simply doesn’t work that way.

  56. #56 Quidam
    April 9, 2008

    I have compared the clips available on line for Expunged and for most of it the similarity is clear. Not just because they are portraying the same objects but because the camera angles and pan paths are identical. Given that the original animation is a stylised representation, it seems clear that they did not revisit the source and generate an animation from scratch but remastered the original. If it were computer code the ‘look and feel’ is undeniable. I’ll guarantee they didn’t have a clean room where independent scientists produced their animation without having studied the original as would be required for software.

  57. #57 True Bob
    April 9, 2008

    infoaddict wrote

    Yes, spelling DOES matter, when you’re threatening to sue people.

    What is that strange verb in the post title? DraftWhat could that possibly mean?

  58. #58 Steve Ulven
    April 9, 2008

    Haha, so copyright infringement laws actually do work toward assholes sometimes. Hahahaha!

  59. #59 Kevin Dorner
    April 9, 2008

    #51: Thank you. :^)

  60. #60 Jeff C.
    April 9, 2008

    AAAAAHAHAHAHAHA!

  61. #61 mayhempix
    April 9, 2008

    They will claim Christian persecution and claim Jebus and God own the master copyright since they designed it all.

  62. #62 Pandora
    April 9, 2008

    Professor Myers, I believe you have been vindicated! :-)
    HaHaHaHa ….

  63. #63 BMH
    April 9, 2008

    I’m a little worried about this. Could give them a reason to not release the film, back out on its release, and blame it all on ‘big science,’ which, of course, they will claim is behind this lawsuit. I see it now, Expelled ‘would have’ opened to spectacular reception if only….

  64. #64 tomh
    April 9, 2008

    Steven Alleyn wrote: I’d be willing to bet money … the film makes a killing

    I wish I could make that bet – this crap will never make a dime.

  65. #65 Ian
    April 9, 2008

    I’m a little worried about this. Could give them a reason to not release the film, back out on its release, and blame it all on ‘big science,’ which, of course, they will claim is behind this lawsuit. I see it now, Expelled ‘would have’ opened to spectacular reception if only….

    But if they did that, it would be an admission on their part that the copyright infringement claim has merit. Sounds like a win to me.

  66. #66 Ichthyic
    April 9, 2008

    Could give them a reason to not release the film, back out on its release, and blame it all on ‘big science,’

    it would be FAR less work to clarify THAT issue, than all the lies and misinformation presented in the film itself.

    Frankly, if this single issue made the producers cry “victim” and not release the film for public consumption, I wouldn’t be happier.

  67. #67 mayhempix
    April 9, 2008

    “No. The name Aureola would make one a tit-wit.”

    Close… but it really makes one a nip-wit.

  68. #68 peter irons
    April 9, 2008

    OK, the spelling errors were mine, and didn’t get caught at the XVIVO office when they copied the letter from my draft onto their stationery. So who’s perfect? From what I know of the movie business, and what the XVIVO people told me, it would cost the Expelled producers a mint (at least $100K) to recall and remaster all copies before they go to theaters. So they have to choose a) between that cost, b) delaying the film’s release, and c) keeping the segment in and risking a lawsuit. XVIVO does have a really good copyright lawyer from a big firm in Boston, so it’s not just an idle threat.

  69. #69 Reginald
    April 9, 2008

    ERV, I suppose you’re right. This pretty much has to be real especially if they also sent a hardcopy letter.

    I will still wait though until more comes out, I’m always cautious.

    Also has anyone gone to XVIVO’s site? I had no idea what else they did, those are amazing things.

  70. #70 Brodysattva
    April 9, 2008

    If, say, 20 or 30 of Peter Irons’s awesome smackdowns could be collected into a book, I would buy that book.

    I’m just saying.

  71. #71 Chris Noble
    April 9, 2008

    Actually, this is really stupid.
    While it does appear that Expelled made their own very similar version of the XVIVO animation they did create the 3d modeling from scratch. Facts can’t be copyrighted. While the XVIVO video has a layout and sequence of events that have been generally copied Expelled didn’t use any of their footage or graphics. I really don’t think we want to make copyright laws stricter in this sense, for what Expelled does is similar in some ways to reading about a fact and then writing up a description in your own words. Oh sure, you can argue both ways, but I think this kind of legal action will bite back and litigious IDers’ will try and use the same tactics against us.

    Try copying the Oxford English Dictionary (with a few changes in wording) and see how far you get with the idea that the definitions of words can’t be copyrighted.

  72. #72 Kevin Dorner
    April 9, 2008

    #64 — re: I wish I could make that bet – this crap will never make a dime.

    Unfortunately I have to disagree, for the same reason that L. Ron Hubbard’s books get into the best-seller list. Scientologists are peer-pressured into buying them, as Christians will be peer-pressured to see this dreck by the busload. I hope that any future Francis Collins or Ken Miller among them isn’t the worse the experience.

  73. #73 Vic
    April 9, 2008

    ERV (11):

    They should have made a documentary on the making of EXPELLED.

    It would rival ‘Spinal Tap’.

    Marty DiBergi: “Quoting from one of your reviews – ‘This tasteless film is a good indication of the lack of scientific knowledge within. The intellectual honesty of this band cannot even be charted. They are treading water in a sea of retarded pseudoscientific apologetics and bad analogies.'”

    Ben Stein: “Well, that’s a lot of nitpicking, really…”

  74. #74 Pleco
    April 9, 2008

    giggity

  75. #75 J-Dog
    April 9, 2008

    This Is Beautiful! Peter Irons For President.

  76. #76 Moses
    April 9, 2008

    I’d be willing to bet money that they don’t remove the segment, the film makes a killing and that they finally settle out of court for a pittance.

    Posted by: Steven Alleyn | April 9, 2008 7:51 PM

    Injunction junction, what’s your function?

    An equitable remedy in the form of a court order, whereby a party is required to do, or to refrain from doing, certain acts. The party that fails to adhere to the injunction faces civil or criminal penalties and may have to pay damages or accept sanctions for failing to follow the court’s order. In some cases, breaches of injunctions are considered serious criminal offences that merit arrest and possible prison sentences or death.

    At the core of injunctive relief is a recognition that monetary damages cannot solve all problems. An injunction may be permanent or it may be temporary. A preliminary injunction, or an interlocutory injunction, is a provisional remedy granted to restrain activity on a temporary basis until the court can make a final decision after trial. It is usually necessary to prove the high likelihood of success upon the merits of one’s case and a likelihood of irreparable harm in the absence of a preliminary injunction before such an injunction may be granted; otherwise the party may have to wait for trial to obtain a permanent injunction.

    Considering how blatant the copying of the video is, it is probably likely that an injunction will be granted.

  77. #77 Pleco
    April 9, 2008

    I give it a two word review: shit sandwich

  78. #78 MH
    April 9, 2008

    I’d love to be in court when their animators get asked to justify their work:

    Prosecution: Tell us why you chose to portray these particular cell processes in such a way.

    Animator: Err, well, we looked inside a cell and that’s what we saw.

    Busted!

  79. #79 Nemo
    April 9, 2008

    I think their defense will be fair use, for purposes of comment and criticism. Or perhaps parody.

  80. #80 Duncan
    April 9, 2008

    Much as this is interesting news, I doubt it will have that great an impact on the overall film’s success or failure. (And in a different post, I’ve already stated why this film cannot ‘fail’, because here we are talking about it.) The main premise of the film does not hinge on that disputed segment, so leaving it in or taking it out will not substantially alter the film one way or another. Thus it would be difficult to calculate the damages and any settlement will probably be minor in relationship to the rest of the costs/revenues.

    Having said that, it will be fun to see how it plays out over the next few weeks.

  81. #81 Lulu
    April 9, 2008

    Good calls, Aureola. A professional document shouldn’t trip up on words like those.

    Otherwise, fuckin’ A. Awesome.

    Thanks, Moses, for the explanation. Sounds promising for the owners of the stolen video. I sure as hell wouldn’t want my material to be appropriated for this detestable purpose.

  82. #82 Benjamin Franklin
    April 9, 2008

    New Comedy Central gameshow coming this fall-

    SUE BEN STEIN’S MONEY

    I don’t know though, do you think XVIVO can find a good lawyer at Harvard?

  83. #83 Ichthyic
    April 9, 2008

    thus it would be difficult to calculate the damages and any settlement will probably be minor in relationship to the rest of the costs/revenues.

    hello?

    did you happen to see that Peter himself asked what the expected damages would be of having to retract all the current copies of the film?

    excess of 100K.

    see #68.

    oh yes, if approved by a judge, this will most assuredly have an impact on the release and distribution.

    Injunctions have a tendency to do that.

    you probably should have gandered at the comments in the thread before pontificating.

  84. #84 Monado, FCD
    April 9, 2008

    Can we get some stills from the two videos to show the similarities? And maybe from an unrelated video so people can see what independent development looks like?

  85. #85 James F
    April 9, 2008

    #79 Nemo wrote:

    I think their defense will be fair use, for purposes of comment and criticism. Or perhaps parody.

    I think their only hope is the Chewbacca defense.

  86. #86 Andrea Bottaro
    April 9, 2008

    While it does appear that Expelled made their own very similar version of the XVIVO animation they did create the 3d modeling from scratch.

    I am sure that if the Expelled producers can show the judge all their notes and proof of intermediate production stages with respect to the scientific work that went from the analysis of the existing literature data to the construction of the molecular models, their rendering, and the final animations, the suit will be quickly dismissed. If on the other hand, all they have is a final product that looks just like XVIVO, and nothing to show about how they got there, the most logical conclusion is that their version is just a bad, unauthorized copy. It’s pretty straightforward, really: if they have been honest, they have nothing to fear.

  87. #87 J-Dog
    April 9, 2008

    Andrea – Dude – I think you summed up the Stadard Operating Procedure for the entire range of ID Creationism Research: “if they have been honest, they have nothing to fear”.

    I think that I sense fear.

  88. #88 David vun Kannon, FCD
    April 9, 2008

    If it were fair use, they would have stuck with the original and not gone to the trouble of pretending to make an original work.

    All of your copy is belong to us.

  89. #89 JCG
    April 9, 2008

    I guess you could say Mr. Irons is pretty…steamed.

  90. #90 Michael X
    April 9, 2008

    Andrea,
    It’s actually worse than you think. Not only must they show their work, they have to explain (as PZ stated in the far earlier post on this topic, and ERV pointed out in this thread) the identical mistakes made in both videos. But, even more damning, how they ended up visualizing these mistakes in the exact same way as XVIVO. No amount of homework and fact checking will save you there.

  91. #91 James F
    April 9, 2008

    #89 JCG wrote:

    I guess you could say Mr. Irons is pretty…steamed.

  92. #92 divalent
    April 9, 2008

    I’m pretty sure that the producers of Expelled will want to get this resolved ASAP.

    Do you remember the tales from folks who got into the preview screening where the producers mentioned a $250,000 “fine” for anyone caught making a copy of the movie? What they were refering to were the statutory damages provided for in the copyright law. (Statutory damages means you get to collect it even if you can’t prove that you suffered a harm in that amount).

    That $250,000 would apply for each and every instance of infringement: Each copy of the movie made, each showing of the movie (all those previews!), and each promo DVD they made and distributed like leaflets at the previews. At a quarter of a million a pop, they are at substantial financial risk if their work does infringe the copyright of the XVIVO work.

    This is a serious shot across their bow, and if they feel there is a reasonable risk they would be found to have infringed the XVIVO work, they will excise it pronto (or pay XVIVO a substantial sum to license it).

    [As a side issue, I wonder to what extent Dembski’s “reworking” of this video to make it seem like it was something he (or the DI) produced blinded the producers of Expelled to the possibility that this issue would crop up.]

  93. #93 Siamang
    April 9, 2008

    #79 Nemo wrote:
    I think their defense will be fair use, for purposes of comment and criticism.

    From what I understand, they weren’t commenting on or criticizing XIVO’s animation.

    It’s rather like using John Lennon’s song “Imagine” without paying for the rights, in order not to make commentary or criticism of the song, but in order to make a point about the Soviet Union. Which I hear this film does.

    Anyone got the number of Yoko’s Lawyer?

  94. #94 Chris Noble
    April 9, 2008

    It’s actually worse than you think. Not only must they show their work, they have to explain (as PZ stated in the far earlier post on this topic, and ERV pointed out in this thread) the identical mistakes made in both videos. But, even more damning, how they ended up visualizing these mistakes in the exact same way as XVIVO. No amount of homework and fact checking will save you there.

    I’ve heard that publishers of dictionaries and encyclopaedias sometimes put in deliberate mistakes to detect plagiarism.

  95. #95 Brian Tani
    April 9, 2008

    #39

    To my knowledge, paraphrasing someone and not giving credit is still considered plagiarism.

    I wonder if they have credited the inspirational material, even though using a work based on it, would make it ok. I don’t know. What would be the fair use limit of this? Does Parodies count in this?

  96. #96 John the Skeptic
    April 9, 2008

    did you happen to see that Peter himself asked what the expected damages would be of having to retract all the current copies of the film?

    excess of 100K

    Actually, in this context, “damages” means the money the infringers (Premise) would owe to the copyright owners (XVIVO), as compensation for the infringement (in addition, of course, to the injunctive relief that the copyright owners would be entitled to) if this case was litigated and reached a judgment.

    The infringers would still need to bear the costs associated with ending their infringement–recalling and destroying the infringing prints, producing an original, non-infringing replacement scene, re-editing, re-printing, and re-distributing new prints. That’s what Peter is saying would cost about $100k.

    Incidentally, this may not be the only C&D letter that Premise may need to deal with. From the reports from Dawkins and others, Premise has included a LOT of copyrighted music in the soundtrack for Expelled. If Premise did not license all of this music (and this can be very expensive), they may have to completely revise the soundtrack as well. Premise REALLY does not want to release their movie with an unlicensed soundtrack: the music industry doesn’t play games with their copyrights.

    The best case scenario for Premise is that they’ve been spending the last several months resolving these issues, and they have non-infringing prints ready to roll, without the offending XVIVO material. Their best case would also entail that they’ve licensed all of the copyrighted music they’re using (or removed those songs from the final print.

    Failing that, there’s no way they can release Expelled on the 18th. They will either have to voluntarily delay release, or XVIVO will get a TRO, and then a PI, against them.

  97. #97 Bad
    April 9, 2008

    “SUE BEN STEIN’S MONEY”

    According to Money magazine where he was interviewed, Stein has 8 houses.

    He can take it.

    (Though in all honesty, he’s not liable in any way here unless he has money invested in the film)

  98. #98 Paul Lundgren
    April 9, 2008

    I hate to say this, but they’re removing about the only piece of what could possibly constitute science from this movie? If this piece goes away, what’s left? Oh, right; the truth…about what IDiots are all about.

  99. #99 Allen MacNeill
    April 9, 2008

    I’m curious; isn’t there a commandment about stealing in there somewhere? Anyone? Anyone? Buehler?

  100. #100 Praxiteles
    April 9, 2008

    I’m amazaed the Peter Irons has made a comment here, and yet no-one has responded to it! Has everyone missed it? Does no-one want to personally thank Peter for his legal pepper-spray blast into the eyes of the beast?

    I will, then. Thank you Peter. Your letter has caused many people here much happiness.

    Prax

  101. #101 Tulse
    April 9, 2008

    I’ve heard that publishers of dictionaries and encyclopaedias sometimes put in deliberate mistakes to detect plagiarism.

    Mapmakers do so as well, and two maps of the same area are arguably going to be much more similar than two independent representations of the same molecular biological processes. (And that even disregards how likely it would be that two independent representations of molecular biological processes would choose the same processes to represent.)

    In other words, if you can violate the copyright of a map by using it as the basis for your own map, you can surely violate the copyright of a scientific animation by using it as the basis for your own animation.

  102. #102 brandon
    April 9, 2008

    ha, owned…

  103. #103 ERV
    April 9, 2008

    @92:

    (or pay XVIVO a substantial sum to license it)

    Not for sale. :)

    I share your suspicions about the DI making this animation and sheltering the EXPELLED people from this potential controversy. Kevin Millers responses to my questions over at AtBC indicated (to me) that he had no idea who actually made it, plus he said some things that reeked of DI ‘legal advice’.

    heh.

  104. #104 Jim Lippard
    April 9, 2008

    I’ve heard that “plagiarized errors” in DNA provide evidence for common ancestry

  105. #105 MH
    April 9, 2008

    #100: “Does no-one want to personally thank Peter for his legal pepper-spray blast into the eyes of the beast?”

    I think Peter knows how much he is loved around here. But, it never hurts to be reminded:

    Peter, you’re ace!

  106. #106 Glen Davidson
    April 9, 2008

    Cross-posting from PT, not accusing at all, just expressing my desire that no hint of obstruction of the film be given:

    I would say that I hope the matter isn’t deliberately used to obstruct the release of the film, beyond the dispute over copyright.

    They ought to defend the rights that they have, of course, but it won’t look good to try to keep the film from being released, if good faith measures are taken by Premise and anyone else involved.

    The movie will likely to continue to be a PR disaster regardless of what happens, and I wouldn’t wish to save them the embarrassment, nor to go to any great lengths to keep anyone who wishes from seeing it.

    I suppose it’s even possible that Premise will try to drag this out in order to claim suppression, and to give the illusion that this is all a matter of forbidden fruits. But I doubt it, as I suspect that a number of people would like to make some money from it, or at least to recoup losses.

    Anyway, though I have no reason to think it would be otherwise, let it be that resolving the issue is the point of these legal actions, and nothing else.

    Glen Davidson
    http://tinyurl.com/2kxyc7

  107. #107 Glen Davidson
    April 9, 2008

    nor to go to any great lengths to keep anyone who wishes from seeing it

    Well actually, no lengths at all to keep anyone from seeing it.

    Glen D
    http://tinyurl.com/2kxyc7

  108. #108 Ichneumon
    April 9, 2008

    While the XVIVO video has a layout and sequence of events that have been generally copied Expelled didn’t use any of their footage or graphics.
    That won’t save them.

    Just try the following and see whether you win the resulting lawsuit: Publish a novel about a boy magician named Harvey Putter who goes to magician school, after his parents were killed by an evil magician named Valkemort in a murder which left young Harvey with star-shaped scar on his forehead, etc. etc.

    That’s how close the “Expelled” knock-off is compared to the original XVIVO video.

  109. #109 Steven Alleyn
    April 9, 2008

    Moses: Thanks for that, I figured an injunction might be possible, but as Mr. Irons didn’t say anything about one, I didn’t think it was in the works; if, however, as you claim, it’d be easy-peasy to get ahold of one…

    Yeah, I can see that.

    Tomh: Unfortunately, there are 150 Million people in the US’ bible belt and I’m sure that at least a few million will shell out the coin to go catch this flick. It’ll make enough, considering the production values weren’t too immense… There’ll be profit to burn.

  110. #110 jsn
    April 9, 2008

    /I think their defense will be fair use, for purposes of comment and criticism./

    Fair use of a copyrighted audio/video work doesn’t apply when introduced in a commercial or industrial film. Rights must be obtained through licensing and fees and only if the license holder grants permission. The Nutzi footage is stock that can be used for a fee. Perhaps there is some WWII footage that is in the public domain now.

  111. #111 Rick Schauer
    April 9, 2008

    Yep, just more of what I remember about the true manifestations of religious morality: lie, cheat, deceive, plagiarize…the only things I see as missing are mass murder and pedophilia!

  112. #112 AaronInSanDiego
    April 9, 2008

    Premise Media always makes me think of the Kids In The Hall “Premise Beach” sketch.

  113. #113 Azkyroth
    April 9, 2008

    Premise REALLY does not want to release their movie with an unlicensed soundtrack: the music industry doesn’t play games with their copyrights.

    You know, given the RIAA’s history and general approach, considering that Expelled compared used such extensive Nazi comparisons, them going after the Expelled producers could push the irony of this affair to some kind of critical mass.

  114. #114 Erasmus, FCD
    April 9, 2008

    For those that enjoy observing douchebags in their natural habitat (this one can’t get through the cattle gate here), Willy Wally is trolling ERVs blog.

    Wants to bet someone that this is irrelevant. Any of you think you can get a douchebag creo to actually pay up, here’s your chance. I’ll wager a single malt scotch you can’t do it.

  115. #115 Charlie Foxtrot
    April 9, 2008

    #76 In some cases, breaches of injunctions are considered serious criminal offences that merit arrest and possible prison sentences or death.

    Death? For copyright infringment?

    Or is that just in Texas?

  116. #116 Russell Blackford
    April 9, 2008

    I’m not worried about the typos referred to above, but this is a bit worrying:

    Each of these statutes provides for judicial enforcement of their provisions, with substantial civil penalties for their infringement.

    This should say: “Each of these statutes provides for judicial enforcement of its provisions, with substantial civil penalties for its infringement.”

    That aside, nicely done. :)

    One thing that puzzles me is why the letter is from XVIVO LLC.

    At least around here, it would be more usual practice for the letter to go from the law firm acting in the matter, signed by the parter with responsibility for the file, and to commence “We act for XVIVO LLC …” Is this a difference between the way it’s done here and how it’s done in the US?

  117. #117 raven
    April 9, 2008

    Yep, just more of what I remember about the true manifestations of religious morality: lie, cheat, deceive, plagiarize…the only things I see as missing are mass murder and pedophilia!

    Patience Grasshopper. They’ll get to mass murder and pedophilia sooner or later if they can.

  118. #118 Jim Lippard
    April 10, 2008

    jsn: “Fair use of a copyrighted audio/video work doesn’t apply when introduced in a commercial or industrial film.”

    Isn’t that more a matter of custom (lack of desire to fight in court against large corporate entities) rather than law?

  119. #119 Jim RL
    April 10, 2008

    Wait, it’s still copyright infringement if you hire someone to reanimate some else’s work? No wonder Disney keeps sending me letters about my Rickey Mouse character. Apparently, stealing somehow else’s ideas violates their intellectual property rights. Who knew?

  120. #120 themadlolscientist
    April 10, 2008

    Animator: Err, well, we looked inside a cell and that’s what we saw.

    Actually, the animators prayed for a revelation and thought they’d received one when they saw the XVIVO clips. Ceiling Cat moves in mysterious ways.

  121. #121 Stephen Llewellyn
    April 10, 2008

    Or a song writer. Never piss off a song writer.

  122. #122 craig
    April 10, 2008

    I thought it was a joke since the lawyer has a porn star name.

  123. #123 SKFK
    April 10, 2008

    “Isn’t that more a matter of custom (lack of desire to fight in court against large corporate entities) rather than law?”

    Fair use is a part of the U.S. copyright law. One of the factors in determining whether something can claim fair use or not is as follows:

    “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;”

    http://www.law.cornell.edu/uscode/17/107.html

  124. #124 wazza
    April 10, 2008

    I assume the comment about breach of injunctions leading to death is for other kinds of injunctions…

    I hope

  125. #125 ArmageddonKitten
    April 10, 2008

    Skyotter #5:

    Damnit, I was going to nail the split infinitive! Thwarted again. :(

    There’s a superfluous comma in sentence 1 for what it’s worth. I’m happy there’s an Oxford Comma in paragraph 2, however. They always make me happy.

    Superfluous comma in P4… Oh, to hell with it. My migraine is telling me that dumpster diving in English 101 isn’t a good idea tonight.

    Signed,
    Grammar Nazi

  126. #126 Benjamin Franklin
    April 10, 2008

    I can see all the movie theater owners calling up their distributors tomorrow for April 18th to switch from Expelled to ZOMBIE STRIPPERS.

  127. #127 Hairhead
    April 10, 2008

    In terms of copyright/plagiarism, the general legal measure is that copyright is violated if the item in question has been changed less than 30% from the original. So just changing the colour and the contours won’t work. They’re screwed, and they’re genuine criminals (as well as being frauds and liars).

  128. #128 PaulR
    April 10, 2008

    Just curious – is there any word about the legal standing of any of the music used in this ‘mock-umental-ry’? I’ve heard they use some Pink Floyd music and I’ve seen the clip using ‘Bad to the Bone’

    Also what about the breach of trust they commited when interviewing scientists like Myers, Dawkins, etc… ? Isn’t any of that actionable?

  129. #129 grib
    April 10, 2008

    that’s awesome. I can’t wait to see what they do.

    aside to the grammar nazis: please, stick to actual rules of grammar. The “split infinitive” rule is entirely made up, not a rule of English in any way, just as is the supposed rule about not ending a sentence with a preposition. It’s one thing to defend rules that are historically grammatical, and another thing entirely to defend ones made up out of whole cloth. a little research before you critique, please.

    as you were.

  130. #130 Colugo
    April 10, 2008

    A blog on artistic property theft:

    http://youthoughtwewouldntnotice.com/blog3/

  131. #131 Ferrous Patella
    April 10, 2008

    As far as “you can’t copyright facts” goes, it looks like Expelled copied some of errors too. For example the steady marching progress of one of the molecules is the same in both clips. As I understand it, the progress is much more random and the XVIVO has been criticized for it. That Expelled copied the errors is pretty much the clincher that they used XVIVO as their source.

  132. #132 Azkyroth
    April 10, 2008

    A blog on artistic copyright infringement

    Fixed it for you.

  133. #133 Olorin
    April 10, 2008

    Hairhead, there is no fixed amount of copying at the boundary of infringement. For one thing, more copying is required for infringement of a factuial work than of a work of fiction.

    As mentioned several times, the two biggest factors in defeating fair use avoidance of infringement are commercial use (rather than non-profit), and profiting from the infringement. (Parody and criticism defenses seem to be totally precluded here.)

  134. #134 Azkyroth
    April 10, 2008

    As mentioned several times, the two biggest factors in defeating fair use avoidance of infringement are commercial use (rather than non-profit), and profiting from the infringement.

    Aren’t those the same?

  135. #135 Goffer
    April 10, 2008

    If there were legal action to determine a breach of copyright, both: Drafts of the early designs of their animations; and earlier cuts of the movie itself would have to be disclosed in discovery. If ERV’s theory is right that earlier on they were using the copied film directly, then this would quite apparent.

    If there is a lack of developmental history behind the animation (or they slash and burn all previous records?) then its more obviously a direct copy of the movie.

    It would be interesting to read through all the emails and correspondence of the directors / producers as to how they came about with the animation.

  136. #136 Goffer
    April 10, 2008

    “As mentioned several times, the two biggest factors in defeating fair use avoidance of infringement are commercial use (rather than non-profit), and profiting from the infringement.”

    The fact that they didn’t just use it directly, and made their own version would to be the biggest factor against fair use, I would have thought.

  137. #137 Christopher Gwyn
    April 10, 2008

    I think their defense will be fair use, for purposes of comment and criticism. Or perhaps parody.

    ‘Fair use’ by claiming it was a parody might, almost, work. But if they claim ‘fair use for educational use’ the legal case will get very interesting. Can you claim an educational defense for copyright infringement if the ‘education’ being offered is utter nonsense?

  138. #138 Natasha Yar-Routh
    April 10, 2008

    If they are really using unlicensed music inn ‘Expelled’ they are totally screwed. There are award winning documentaries that can not be shown because the license for the music used has expired. If they think they can get away with not licensing the music they really are IDots. The RIAA will have their guts for garters.

  139. #139 Pyre
    April 10, 2008

    “One thing I know: I never want to piss off Peter Irons, Esq., Attorney at Law.”

    Oh, I wouldn’t mind pissing him off.

    At someone other than myself, mind you.

  140. #140 andyo
    April 10, 2008

    This has got to be the first time the DMCA has been applied reasonably.

  141. #141 Bob
    April 10, 2008

    “I think their defense will be fair use, for purposes of comment and criticism.”

    I don’t think they can say this if it’s a for-profit operation.

  142. #142 AK47
    April 10, 2008

    My prediction: they’ll remove the footage in question. Instead there will be a black screen and you’ll hear a revised version of the narration. Ben Stein will drone something like the following:
    “In the inner workings of a cell… yada yada yada happens… We’d like to show you what that would look like, but apparently Big Science is so afraid of blah blah blah that their lawyers threatened us…” (then some sort of lord privy seal montage involving a caricature of a lawyer).

  143. #143 marc buhler
    April 10, 2008

    David, comment #88, gets a nod.

    “All yer bases….” rotfl

    But let’s see… do the IDists have a hope of understanding?

  144. #144 Michael X
    April 10, 2008

    Next Ben will have to do a documentary on Big Law.

    *Droning VO*: “So what is it that makes these lawyers think that everything they get put into a book should be followed? Why is my choice to violate copyright so scary that these lawyerists have to threaten me with consequences if I do? Consequences, I’ll remind you that they made up too. No freedom to break laws is possible in a system that dogmatically makes you follow them, or else. You know, Hitler created laws too…”

    -Cut to interviews with other people wrongly imprisoned for breaking laws-

  145. #145 Scott Hatfield, OM
    April 10, 2008

    The long-rumored possibility of plagiarism action against ID advocates and their allies, first generally highlighted by ERV, now seems to have touched Ben Stein and Company. Ah, sweet schadenfreude.

    This film has already rather curiously been pulled from distribution right around the anniversary of Darwin’s birth. Now, with its premiere in Fresno just days away, will it happen, or won’t it? Stay tuned for further info, but really, can the folk behind ‘Expelled’ expect me to believe this latest bump in the road is just another clever episode of viral marketing? Every time they stumble in public, they quickly spin it as if whatever happened is all going according to plan, which is frankly hilarious. I’m now of two minds: on the one hand, the film doesn’t sound like anything but a hatchet job, and it would be satisfying to see it torpedoed on their own malfeasance. On the other hand, that might play into the ‘conspiracy of science’ that’s their main (if illusory) talking point. And besides, the longer ‘Expelled’ is in the public eye, the more goof-ups go public. It hasn’t even opened yet, but ‘Expelled’ is the gift that keeps on giving. Why would I want it to stop now?

  146. #146 Aquaria
    April 10, 2008

    Finally, a topic I know something about. IANAL, but I do have experience in the publishing industry.

    #39, Scote

    Uh, dude, you can write a book about John Adams, just like David McCullough. The facts can and probably will be the same, but if you use McCullough’s narrative devices, like turns of phrase, opinions and ordering/emphasis on data, however re-worded they might be, you’re in violation of copyright.

    Just like George Harrison could change “He’s So Fine” to “My Sweet Lord,” but he still violated the copyright through the musical phrasing/notes/chords/whatever (I’m not musical). And he was stupid enough to use the same “do-wop” sound of the original. Epic Fail on his part, and the same thing in regards to this clip.

    From what I’ve seen of the two clips, Expelled is busted on the copyright front, for reasons others have stated upstream. XVIVO is in pretty good shape. I think the Expelled morons will settle, or at least offer to do so. It’s XVIVO’s call when it comes to accepting it. Me, I’d make an example of them, so that these IDiots will cease ripping off of their product, once and for all. Nothing like knowing that the scientists/artists will bring a gun to the knifefight to get them to steer clear.

  147. #147 Ace of Sevens
    April 10, 2008

    Fair use won’t work. They could only claim fair use if they were commenting on the XVIVO video. THey’re dealing with it’s subject matter. For instance, you can copying a painting of George Washington to talk abotu the painting, but not about George Washington. If they tried to argue fair use, they would get destroyed in counter arguments. THey’ll probably try to argue that’s it’s not all that similar, but I doubt they’ll win with that approach, either.

  148. #148 brokenSoldier
    April 10, 2008

    The one thing I find funny in this entire Creationist/ ID movement is the tactic of portraying themselves as unfairly oppressed advocates of open discussion and debate, a la Galileo, Copernicus, Kepler, and on and on… Since when did religion move from the tyrant to the oppressed? To my knowledge, “Big Science” has yet to put anyone to death for heresy.

  149. #149 Scote
    April 10, 2008

    I should clarify a few things. I’ve never claimed that XVIVO doesn’t have a possible case, but that this isn’t a good issue to latch on. Because the Expelled version is similar but not identical there will be maters of fact for a judge or jury to decide. That means the case can’t be won on a simple summary judgement motion. It is not cut and dried.

    Additionally, you should be careful about encouraging organizations about being too maximalist about the penumbra of copyright. PZ posting the two videos for comparison is, IMO, classic fair use. But fair use is an affirmative defense to copyright infringement based on a nebulous nexus of factors–the kind of factors that can be very expensive to defend in court. Once again, what constitutes fair use isn’t a simple summary judgement issue where no facts need be adjudicated. Thus, fair use is good only so far as you can afford to defend yourself in court.

    So how could the lawsuit against Expelled bite us in the ass? Well, it might encourage Expelled to go bonkers and sue people who post clips from the preview discs, for one thing. Shure, you’d probably win in court, but can you afford to win in court? Don’t assume the EFF will come to your aid, either. They are an impact litigation org, so they only take certain cases. If you start getting too copyright happy, the ability to freely post text, audio and video quotes without fear of reprisal will be greatly reduced.

    Do you really want to encourage lawsuits on this sort of thing when there are so many more completely black and white lies by the producers to harp on? Perhaps even some unlicensed music played at public screening?

    Fair use of a copyrighted audio/video work doesn’t apply when introduced in a commercial or industrial film. Rights must be obtained through licensing and fees and only if the license holder grants permission. The Nutzi footage is stock that can be used for a fee. Perhaps there is some WWII footage that is in the public domain now.
    Posted by: jsn

    That is a common misunderstanding. Fair use is a deliberately vague set of standards designed to allow for flexibility at the expense of clarity. You won’t know for sure if it is fair use until you win a lawsuit. But, there are 4 primary factors in determining the probability of something being fair use. You know from experience that commercial media uses fair use all the time, quotes of books used in reviews are a classic example.

    As to the animation in Expelled being fair use? That is less likely, but were they to defend themselves in court they would probably through that in to the litany of affirmative defenses that the plaintiff would then have to prove don’t apply.

    PS I like your
    A
    sig, MelM

  150. #150 bad Jim
    April 10, 2008

    Oh, well. The film will probably never be released, and P.Z. Myers loses his first shot at silver screen stardom. We’ll still be telling the story to generation after generation, but this is the end. Unless …

    Is there any way we could squeeze one more laugh out of this?

  151. #151 maureen
    April 10, 2008

    Scote,

    I think you are getting worried about nothing. My understanding always was that with a defence of “fair use” the emphasis was on FAIR. It is, of course, decided on a case by case basis but it is a concept understood by most people. We know who the exceptions are!

    Taking a piece of work – in this case a video animation – making a copy and misrepresenting where it came from, what it shows and generally talking drivel across it would not pass any known definition of fair.

    Mr Irons and his learned friends need only prove that the IDiots did not and did not intend to let the original work be judged on its own merits – which they could have done and then spent the rest of this dreadful movie saying, in effect, “we disagree with that and this is why we disagree.”

  152. #152 Peter Ashby
    April 10, 2008

    Peter Irons@#68:

    XVIVO does have a really good copyright lawyer from a big firm in Boston, so it’s not just an idle threat.

    YES! Boston Legal are on board. Though maybe not Denny Crane huh?

    Thanks for that one Peter ;-)

    If Expunged et al cry fowl the best response that will resonate with their fanbase is simply to say: Thou Shalt NOT steal.

  153. #153 Scott R.
    April 10, 2008

    I think we should take a moment to be skeptical about this. PZ, where did you get this letter from. The spelling errors, while obvious, are not what I’m referring to. Some attorneys are notoriously bad spellers. I did a google search on Peter Irons (sounded to me like a porn star name) and the only references that came up were to this letter. We all know how things like this can spread quickly around like minded sites (including this one) so I won’t take it as real on that merit alone. A google map search of the address showed a rural area outside of greenville which isn’t a big town to begin with. While none of these clues are conclusive, I would like to see some definite proof that the attorney in question is real. I would not want the IDiots to be able to point to this and say we are lying as much as they do.

  154. #154 James F
    April 10, 2008

    Prof. Peter Irons is no stranger to dealing with the Discovery Institute. I confess that I had to do a little searching to get myself up to speed, and now that I have, let me join in the hearty thank-yous.

  155. #155 Caf
    April 10, 2008

    They should have made a documentary on the making of EXPELLED.

    It would rival ‘Spinal Tap’.

    Except it would be named ‘Anal Cr….

    I’ll be good.

  156. #156 Azkyroth
    April 10, 2008

    Scott R: look harder.

  157. #157 Scote
    April 10, 2008

    Scote,
    I think you are getting worried about nothing. My understanding always was that with a defence of “fair use” the emphasis was on FAIR. It is, of course, decided on a case by case basis but it is a concept understood by most people. We know who the exceptions are!
    Posted by: maureen | April 10, 2008 4:16 AM

    “I’ll know it when I see it” is not a standard who’s reliability engenders confidence, especially where ruinous lawsuits may result. Indeed, it is very difficult, nigh impossible, to get errors and omissions insurance required for most tv shows if you try to use fair use. That doesn’t mean that fair use doesn’t apply, just that it is nebulous and unsure.

    I’d generally agree that a suit in the instance I posited earlier is unlikely–and yet entirely plausible, too. And lest you think merit is the standard by which rights holder sue, 30,000 RIAA lawsuits suggest otherwise, as do countless over-broad suits and also countless DMCA takedown campaigns even where fair use was clearly in evidence.

  158. #158 Mrs Tilton
    April 10, 2008

    Scott @153,

    I trust your post is in the spirit of bone-dry deadpan irony.

    If not, here’s what I suggest:

    1. Get a job in which you act, in some way or other, for a US state or federal government.

    2. Violate the establishment clause in a way that infringes the rights of a plaintiff who has standing to sue you.

    3. Sit back and wait, and soon enough you just might be more convinced of Peter’s reality than you really want to be.

    Of course, there are cheaper and less painful ways to make Peter’s acquaintance. I recommend you look into his book God on Trial.

  159. #159 Matt
    April 10, 2008

    Now if only the record labels behind The Killers got involved and threatened Expelled too. I haven’t seen the movie (I’m British, we have the advantage over you Americans in this case in not having to worry about having our cinemas polluted with this trash… but you guys do better in other ways) but I hear the film has a lot of music, including John Lennon. I really, REALLY don’t think Yoko Ono, an atheist, would ever agree to selling her dead husband’s best known song to these creeps.

  160. #160 ellazimm
    April 10, 2008

    Scott R: You should have tried Wikipedia. http://en.wikipedia.org/wiki/Peter_H._Irons

  161. #161 scote
    April 10, 2008

    I think we should take a moment to be skeptical about this. PZ, where did you get this letter from. The spelling errors, while obvious, are not what I’m referring to. Some attorneys are notoriously bad spellers. I did a google search on Peter Irons (sounded to me like a porn star name) and the only references that came up were to this letter.

    There is actually a very well known attorney named Peter H. Irons, however I don’t believe he is in practice anymore. But, the letter isn’t actually signed by Peter Irons. Instead, it says carbon copy to him, though he could have composed it. More usual is for council to send a letter under there own name on behalf of the clients.

    There is no Peter Irons listed with the California State Bar, so something is a little odd about the letter since you generally can only list yourself as attorney at law if you are a current bar member.

    Why would you redact the name the letter is addressed to? Is there some other “Chairman of Premise Media Corporation?” Also, who redacts the domain rather than the alias in an email? The domain should be rather easy to guess.

    I’m not saying the letter is bogus, only that it is a little weird.

  162. #162 Sigmund
    April 10, 2008

    scote, He was turned to steel. In the great magnetic field
    Where he traveled time. For the future of mankind.

  163. #163 Scote
    April 10, 2008

    On a related note, forum gadfly, “William Wallace” posting at ERV is betting $100 bucks to charity that the footage says in.

    http://endogenousretrovirus.blogspot.com/2008/04/expelled-expelled-for-plagiarism.html?showComment=1207797480000#c4115479319459109978

    Now who would trust the honesty of an IDer to pay up?

  164. #164 negentropyeater
    April 10, 2008

    This story makes me wonder, why didn’t Premise contract XVIVO in the first place ?
    XVIVO is a commercial company, with a bottom line, and as it says on its website, their GOAL is to provide great animation with unparralleled service to their parners and clients (which include broadcast companies). From “script to screen” they provide custom education and communication services for every client.
    So what happened ?
    – Premise and Xvivo just couldn’t agree on a deal ? (for financial reasons, or because Premise refused to work for this client)
    – Premise just ignored Xvivo ?
    – who did Premise contract to do the animation ? It could be that in this case, the copyright infringement is the responsability of the contractor.

    BTW, now that Mike Huckabee is officially endorsing Expelled, because as he notes, liberal secularist scientists discuss aliens and crystals as the origin of life, it’s quite clear that this movie is spining itself into some sort of polical statement against liberalism, secularism, and science.
    http://vbuttons.com/ec/8683/index.php?em_id=13156243
    What a nutcase !

  165. #165 Stuart Ritchie
    April 10, 2008

    It’s not like the ‘EXPELLED!’ filmmakers actually used the animation to any great effect. They didn’t bother explaining what any of the parts were (as far as I can see in the clip where it’s used). They could have had any sufficiently complicated-looking biological animation and their audience would still be wowed.

    Still, awesome that Irons is back! Go on yersel’!

  166. #166 Ichthyic
    April 10, 2008

    There is actually a very well known attorney named Peter H. Irons, however I don’t believe he is in practice anymore.

    I believe that’s him.

    see #68.

    Peter has been doing legal analysis of the anti-science movement for some time now, and you can find a history of his various efforts on several threads on this blog.

    example:

    http://scienceblogs.com/pharyngula/2007/09/peter_irons_is_having_just_too.php

    in short, he’s for real alrighty, and i guess you missed #68 where he was very clear about his involvement in writing this draft.

  167. #167 Ichthyic
    April 10, 2008

    I believe that’s him.

    actually, I KNOW that’s him.

  168. #168 Scote
    April 10, 2008

    “in short, he’s for real alrighty, and i guess you missed #68 where he was very clear about his involvement in writing this draft.”

    Nope, didn’t miss where a person using the handle Peter Irons said that, but you can’t always take the internet at its word :-)

  169. #169 Ichthyic
    April 10, 2008

    I guess you get familiar with his style after a while, and recognize when it’s actually Peter that’s posting.

    it’s him.

    trust me.

  170. #170 Carlie
    April 10, 2008

    I always thought one of the tests for educational fair use specifically was that you couldn’t charge for seeing it. Is that true? If so, they wouldn’t have so much of a penalty yet, since they’ve been paying other people to see it, but they couldn’t release it in regular theaters. At all.

  171. #171 peter irons
    April 10, 2008

    Scott R @153 and scote @ 160: I’m as real as your crap. Just for the record, I live in a small town in northern California, having retired from teaching at UC San Diego in 2004, It’s nice and peaceful up here, and I have to time pursue my interests, like this issue. No, I’m not a member of the Cal. bar, since I don’t practice in state court. But I am a bar member in US district courts, courts of appeals, and the US Supreme Court. I’m not representing XVIVO; I drafted the letter at their request. Any other questions?

  172. #172 James F
    April 10, 2008

    In honor of Prof. Irons, here’s an oldie but a goodie. Go get ‘em, and thank you!

  173. #173 MH
    April 10, 2008

    Matt #158: “Now if only the record labels behind The Killers got involved and threatened Expelled too.”

    The lead singer in The Killers is a devout Mormon. It’s not out of the realms of possibility that he supports ID. Of course, if he knew what a clusterfuck this film was turning out to be, he might change is mind about being associated with it.

  174. #174 Scote
    April 10, 2008

    “I always thought one of the tests for educational fair use specifically was that you couldn’t charge for seeing it. Is that true?”

    No, it isn’t that simple. There is no hard and fast rule that you can totally rely on. The standard is fuzzy, and deliberately so.

    The for factors are:

    the purpose and character of your use
    the nature of the copyrighted work
    the amount and substantiality of the portion taken, and
    the effect of the use upon the potential market.

    All factors are considered and no single factor is dispositive. Note that each of the factors is broad and open to interpretation rather than binary.

    http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html

  175. #175 Ichthyic
    April 10, 2008

    I rather think, before you go on, Scote, that you owe Peter a minor apology; at least for doubting he is who he said he was, and that he did indeed draft that letter.

  176. #176 Peter Mc
    April 10, 2008

    I hope the Expellers get reamed over this.

    Then they could make a sequel: ‘Ferris Bueller’s pay-out’.

  177. #177 Scote
    April 10, 2008

    Scott R @153 and scote @ 160: I’m as real as your crap. Just for the record, I live in a small town in northern California, having retired from teaching at UC San Diego in 2004, It’s nice and peaceful up here, and I have to time pursue my interests, like this issue. No, I’m not a member of the Cal. bar, since I don’t practice in state court. But I am a bar member in US district courts, courts of appeals, and the US Supreme Court. I’m not representing XVIVO; I drafted the letter at their request. Any other questions?
    Posted by: peter irons

    Hmm…People speak highly of you, and I don’t recall disparaging you in any way. Would you rather I just assume that anything with your name on it is genuine? Do you not think it prudent for people check on the provenance of a letter being spread across the internet in you name? PZ posted it without reference to its origins, so it wasn’t clear if he got it directly from the source.

    Given the high incidence of hoaxes on the internet, I consider it reasonable to be prudent rather than reflexively credulous, and I certainly wouldn’t characterize such fact based caution as “crap,” and I’m sorry that you choose to do so.

  178. #178 MH
    April 10, 2008

    James F #171: “In honor of Prof. Irons, here’s an oldie but a goodie. Go get ‘em, and thank you!”

    That photo always creeps me out. Is anyone else reminded of Dustin Hoffman in Tootsie?

  179. #179 Ichthyic
    April 10, 2008

    and I certainly wouldn’t characterize such fact based caution as “crap,” and I’m sorry that you choose to do so.

    I don’t think he meant it as an insult.
    I think he meant it along the lines of the expression:

    “real as crap”

    hey, I could be wrong, but if so, then I could see him offended by someone not believing it’s him.

    *shrug*

    reflexively credulous

    do you assume PZ is such? PZ knew the letter was from Peter.

    again, if you knew Peter’s history here, like I tried to point out for you, you’d know that Peter often floats copies of related stuff to PZ.

  180. #180 Dave
    April 10, 2008

    Quoting Daniel Dennet “YEAH!!!!”

  181. #181 Scote
    April 10, 2008

    “I think he meant it along the lines of the expression:
    “real as crap””

    I did consider such a possibility, I’ve never head that usage so I went with the usage that I would expect and would seem to go with the tone.

    “do you assume PZ is such? PZ knew the letter was from Peter.”

    I generally consider PZ a credible source but there was no citation or mention of “I got this from…” Frankly, your post saying you were convinced by the tone that it was, in fact, PI was reasonably convincing given your own history of posts, but you’ll note that the post PI is referencing comes from before that post.

  182. #182 peter irons
    April 10, 2008

    I meant your actual crap, which I presume is real. PZ got the letter from me, including my spelling errors. That’s what happens when you’re working at 3 a.m. and spell check doesn’t catch them (like “intention” for “attention” and “stationary” for stationery.”)

  183. #183 Pandora
    April 10, 2008

    Mr. Irons, Sir? Can you come to Florida please? We need you here!! It’s not that far from NC to Tallahassee!! PLEEeeaase!!!

  184. #184 koalas!
    April 10, 2008

    Wow, Scrote – you do seem to be a fool.

  185. #185 Greg Laden
    April 10, 2008

    Thinks are happening exactly as I predicted….

  186. #186 keith
    April 10, 2008

    Looks like the final hours before America is fully informed of the sad and damaging state of the life sciences and the neo-nazi tactics of the evoland cult are revealing the panic of the big science establishment.

    If anyone thinks some pimp lawyer has any chance of impeding EXPELLED in any respect I have some land in S Central Florida and a bridge in Brooklyn at a good price.

    Evos will soon be in the same status Condors.

  187. #187 pedlar
    April 10, 2008

    For goodness sake, Scrote, you’ve dug yourself in deep enough. Back out now. This site is packed full of regulars familiar with Peter Irons and his involvement with PZ. Stop insulting them as too nave and foolish to know what they’re talking about.
    Thanks. No hard feelings.

  188. #188 Russell Blackford
    April 10, 2008

    Well, I don’t think there should have been any doubt in anyone’s minds that this was genuine, if they knew the background (which I assume scote didn’t, so let’s just let it go at that). As for all the typo/grammar Nazism (including mine) on this thread, Zeus knows, we all make tiny, unimportant errors when we’re putting in long days. I make my share even when I don’t have that excuse.

    Okay, I’ll now be fascinated to see how the legal scenario plays out.

  189. #189 Moses
    April 10, 2008

    Death? For copyright infringment?

    Or is that just in Texas?

    Posted by: Charlie Foxtrot | April 9, 2008 11:44 PM

    Could you pay attention? Nobody was asserting that a death sentence could come out of violating a copyright, especially in the US. Rather, it was just a very basic over-view of the injuctive process from a broad-based, non-jurisdictional legal standpoint; violating an injunction, in some rare cases in some judicial systems, end up with someone dead.

    America is not the world, we do not own all the law, and not everyone does things our way. Though most of my fellow Americans, in their narcissistic world view seem to be unaware of that condition.

    Or was that a joke? Because I don’t “get jokes” this close to April 15th. There is nothing funny about weeks of 14-hour days.

  190. #190 Dahan
    April 10, 2008

    Keith,
    “Evos will soon be in the same status Condors.”

    First, nice sentence.

    Second, you know that isn’t true, so why do you say things like that?

    Oh yeah. Your lying has become so habitual that you’ve lost the ability to say anything that is truthful. What a sad little man you are.

  191. #191 PZ Myers
    April 10, 2008

    We’ve got a lot of newbies here who don’t know the history. Peter Irons is a trusted friend of the evolutionary cause, a highly respected lawyer who has helped out multiple times in the past.

    The typos in the letter are because this is an early draft that was sent to a number of us; NCSE has the corrected version.

  192. #192 electrichalibut
    April 10, 2008

    If we could just switch from grammar Nazism to spelling Nazism for a second, you misspelled “millennium” in paragraph 4 as well. That aside, I’m right behind you.

  193. #193 Cheezits
    April 10, 2008

    Well, I don’t think there should have been any doubt in anyone’s minds that this was genuine, if they knew the background (which I assume scote didn’t, so let’s just let it go at that).

    I didn’t know the background either, so I was wondering where the letter had come from myself. So sue me. :-D

  194. #194 ajay
    April 10, 2008

    Evos will soon be in the same status Condors.

    What, you mean endorsed as a state symbol and protected by law?

    Cool.

  195. #195 airbowline
    April 10, 2008

    I can’t wait for the court case, where Premise has to argue that the similarities between the animations are the result of convergent evolution, while XVIVO argues that they are the result of intelligent design!

  196. #196 Darrell E
    April 10, 2008

    I second Pandora’s pleas at 182. We could sure use some large caliber help down here in Florida.

  197. #197 raven
    April 10, 2008

    To interupt the shadenfreude and “They really are christofascists” party, the Expelleds will probably just take the XVIVO segment out. Assuming there is a copyright issue.

    Look at their target audience. Do you think they know the difference between a ribosome and an actin filament? Or care. These are the Voluntary Ignorance and Science=evil folks. Expelled could splice in some NASCAR, pro wrestling, beer chugging babes on a spring break beach, or a cartoon of scientists torturing puppies and it would work better.

    Given who we are talking about, the puppie torturing cartoon will most likely be the replacement.

  198. #198 rowan
    April 10, 2008

    Yes, but to take it out will apparently cost about 100K due to calling back and changing all the copies before its release date….

    ….so its a win-win situation

  199. #199 Olorin
    April 10, 2008

    PZ Myers (#`190) “The typos in the letter are because this is an early draft that was sent to a number of us; NCSE has the corrected version.”

    Well, huh. The “corrected” version still says “stationary” instead of the correct “stationery.”

    The reaction of the Dishonesty Institute will be interesting. When Dembski was smacked down, the DI seemed to fear getting drawn into vicarious or contributory liability for his infringement, and their reaction was only a muted Cain defense: “Am I my brother’s keeper? I can’t possibly keep track of what all 40 Fellows are doing all the time.”

  200. #200 J-Dog
    April 10, 2008

    Raven – Nobody wants to see puppies getting tortured.

    Nazis! It’s got to have more Nazis! Gott Mitt Uns!

  201. #201 Duncan
    April 10, 2008

    People keep talking about the $100K like it’s a make-or-break amount. While it’s not to be scoffed at, I truly doubt $100K is a significant dent in the larger scheme of things. (Some Hollywood productions spend that on catering.) If the figure – and it’s a pretty hazy ballpark at that – were in the multiple 100Ks or 1M I’d be watching more closely how this issue unfolds. As it is now, many have pointed out that the animation will probably get dropped and few will remember this aspect of the production history.

    Nonetheless, it is another black eye for the film in general, and the next step is for it to lose all its teeth. Things appear to be progressing in that direction…

  202. #202 raven
    April 10, 2008

    Yes, but to take it out will apparently cost about 100K due to calling back and changing all the copies before its release date….

    Doesn’t look like money is a problem for them. Or that they give a rat’s ass about making money. This is just a christofascist propaganda film.

    I’m seeing Expelled ads all over my computer when I hit just about any web site, google, yahoo, etc..Reports are that a lot of junk mail ads are circulating for the fundies without internet access or electricity and running water and they aren’t cheap. Spambots are crawling the webs as well, probably the typical meat robots the creos produce.

    It is obvious that there is some big extremist X-Dom. money behind these guys and they will spend a bundle on advertising and legal fees.

  203. #203 Jack Chastain
    April 10, 2008

    Isle juice pint oat, alter wards aurally spalt write, juice tea warring wards wore show son.

    I have always wanted to use Anguish in a reply!

    http://www.justanyone.com/allanguish.html

    JC

  204. #204 Glen Davidson
    April 10, 2008

    Look at their target audience. Do you think they know the difference between a ribosome and an actin filament? Or care.

    No.

    On the other hand, the whole ID “argument” is that it’s all really complex, and you have these little machines in bodies working together, and how could that evolve without intelligence?

    So sure, they may just take that segment out, but they really like it. One reason they like it so much is that it makes biological machines look more machine-like (that is, like our designed machines) than they really are–after all, the animation is designed, and it’s designed to make things more understandable, if rather less like they really are (notice how the bacterial flagellum is typically shown by IDists via illustration, and not by actual images made of the flagellum itself–the former look a lot more designed than the latter do, mainly because the former are designed, and the latter are not).

    So Dembski ripped it off first, then Expelled did, and when friendly voices warned them about their copyright violation, they ripped it off again by changing it somewhat. They love the directed activities in these illustrations–so much better than the chance and probabilistic movements really happening with biological machines (indeed, evolution works to a significant degree by chance because so do development and operation of our bodies–evolution would not work nearly so well with machines engineered to high tolerances and operating by much more directed forces).

    Real science, naturally, shows these illustrations and then tells the students (not necessarily the audiences of pop-sci programs, however) that so much more is happening, from thermal motions to a great many chance encounters between components which are a complete waste by industry standards of machinery. Expelled almost certainly shows only the fictional teaching account, and ignores the fact that things don’t really happen as shown in the animation.

    It’s fiction (as they present it), it baffles the believers, and it’s all that ID has to claim any “positive evidence” for it. So they’ll miss it if they have to take it out, even if that’s their only realistic recourse.

    Glen D
    http://tinyurl.com/2kxyc7

  205. #205 Mooser
    April 10, 2008

    Evos will soon be in the same status Condors.”
    keith
    You sound just like my bubbe.

    But at least you accept the judgement of ecologists about threatened species. That’s nice, it’s a start.

    Tell me keith, why does God hate Condors? What did they ever do to Him, they should be going extinct?

  206. #206 Carlie
    April 10, 2008

    airbowline FTW. (#194) I totally hope the lawyers for XVIVO use that language in court.

  207. #207 AC
    April 10, 2008

    I thought #s 142 & 144 had “won the thread”, but then Peter had to show up again to assert his existence!

    If anyone thinks some pimp lawyer has any chance of impeding EXPELLED in any respect I have some land in S Central Florida and a bridge in Brooklyn at a good price.

    Waterlooooooooo!

  208. #208 Lurky
    April 10, 2008

    This just put a HUGE smile on my face!

  209. #209 Jay
    April 10, 2008

    We all know that Satan put that footage in the film to cause trouble. This is just a test.

    In other news: Creationist offers land and bridges for sale, however comes up short when asked to provide the evidence for ownership.

  210. #210 Inoculated Mind
    April 10, 2008

    I’m a little worried about this. Could give them a reason to not release the film, back out on its release, and blame it all on ‘big science,’ which, of course, they will claim is behind this lawsuit. I see it now, Expelled ‘would have’ opened to spectacular reception if only….

    With virtually nothing but bad reviews online, people may get fed up with waiting, and theaters may not be so interested anymore. Knowledge of copyright infringement will also contribute to less impact.

    By the way, for the grammar Nazis out there, keep in mind that the Expelled folks have demonstrated their utter lack of intelligence – I doubt they’ll notice it. (Before reading here.)

  211. #211 TheBlackCat
    April 10, 2008

    People keep talking about the $100K like it’s a make-or-break amount. While it’s not to be scoffed at, I truly doubt $100K is a significant dent in the larger scheme of things. (Some Hollywood productions spend that on catering.) If the figure – and it’s a pretty hazy ballpark at that – were in the multiple 100Ks or 1M I’d be watching more closely how this issue unfolds. As it is now, many have pointed out that the animation will probably get dropped and few will remember this aspect of the production history.

    That is above and beyond the $250,000 per infringement fine mentioned in #92. Every screening that had the segment, ever piece of promotional piece that had it, any trailer that had it. That will add up fast.

  212. #212 gerald spezio
    April 10, 2008

    Bertrand Russell said:

    “We love those who hate our enemies; and
    if we didn’t have any enemies there would be few people whom we would love.”

    Be very wary of any dispute that has you respecting a sartorially suited lawyer who claims to be helping you by attacking your enemy or your neighbor or your husband/wife.

  213. #213 Janine, ID
    April 10, 2008

    Alright everybody, at the count of three.

    One!

    Two!

    Three!

    Gerry, you fucking twit!

  214. #214 Strakh
    April 10, 2008

    James F at #37, April 9. 2008 8:39 PM:

    Beautiful! A perfect capper to a perfect zinger!

    Thank you!

    And oh, yeah, NNNNOOOOOOOOOOOOOOO!!!!!!!!!

  215. #215 scote
    April 10, 2008

    For goodness sake, Scrote, you’ve dug yourself in deep enough. Back out now. This site is packed full of regulars familiar with Peter Irons and his involvement with PZ. Stop insulting them as too nave and foolish to know what they’re talking about.
    Thanks. No hard feelings.
    Posted by: pedlar | April 10, 2008 8:30 AM

    Not really. I’m glad it’s genuine.

    The reasons for my caution were clearly stated. This is supposed to be a forum where people base their belief on evidence and don’t take everything at face value. Peter Irons has an association with the website I was unaware of.

    BTW, misspelling my handle followed by “thanks, no hard feelings” seems, you know, a tad disingenuous.

  216. #216 Steve_C
    April 10, 2008

    Gerry you fucking twit!

  217. #217 JCG
    April 10, 2008

    Gerry, a f*cking twit is you!

  218. #218 MikeM
    April 10, 2008

    Peter, I’m waaay late to the party here, but thank you very much. That’s my first response.

    And scote, here’s the words you’re searching for (repeat after me): “I’m sorry.”

    Wasn’t that easy??

  219. #219 MikeM
    April 10, 2008

    I had to go and mention this on expelled’s blog.

    You’re welcome.

  220. #220 mezzobuff
    April 10, 2008

    Scote, I am sure Pedlar will apologize for the misspelling of your handle if you apologize for saying that Peter Irons sounded like a porn star name (#153). Kind of a cheap shot and uncalled for…

  221. #221 Duncan
    April 10, 2008

    A diversion:

    Go to the official Expelled site (put on your hazmat suits first) and check out the ‘News’ section:

    http://expelledthemovie.com/chronicle.php

    Note the ‘MOVIES’ blurb in the lower left corner: “Ben Stein’s Film Blew Rush Limbaugh Away…” [enjoy the irony of Rush being on the left] and click the ‘CONTINUE’ link. I’ll wait here.

    HAHAHAHAHA! Got you, didn’t it? (no, it’s not a rickroll link)

    Oh, the irony meter will need a thorough overhaul when this is over…

  222. #222 Scote
    April 10, 2008

    “And scote, here’s the words you’re searching for (repeat after me): “I’m sorry.”
    Wasn’t that easy??
    Posted by: MikeM | April 10, 2008 1:14 PM”

    I’ve stated that I’m glad the letter is genuine, but apologize? For what? Is doubt not the default position? Are we supposed to apologize for taking it? Note that I **never** claimed the letter was false, only that it was “odd” and I clearly stated my reasons for thinking so. Then a a poster I have reason to believe indicated confidence in the provenance of the letter and Peter Irons explained the reason for some of the seeming oddities.

    Facts people. Thesis, antithesis. Dispassionate discussion. Apologies not required for insults not given.

    Case in point:

    “Scote, I am sure Pedlar will apologize for the misspelling of your handle if you apologize for saying that Peter Irons sounded like a porn star name (#153). Kind of a cheap shot and uncalled for…
    Posted by: mezzobuff | April 10, 2008 1:24 PM”

    That was stated by Scott R. in #153. You have me mistaken for someone else.

  223. #223 Jesus Freak
    April 10, 2008

    Jesus Saves!

  224. #224 John R
    April 10, 2008

    “These are the Voluntary Ignorance and Science=evil folks. Expelled could splice in some NASCAR, pro wrestling, beer chugging babes on a spring break beach, or a cartoon of scientists torturing puppies and it would work better.”

    Now hold on there, bobbalouie! I’m a scientist (of sorts) (trained in eco. and evo. bio. as it happens), and yet I _like_ Nascar, pro wrestling and beer-chugging babes on spring break (as long as my wife doesn’t catch me d.o.m.-ogling). I don’t torture puppies, but I do horrible things to rats and mice, so that may be equivalent. Anyway, let’s not let the brush get too broad here..

  225. #225 Tim Fuller
    April 10, 2008

    Ok I’m with you guys on this one but right after we get the court to rip this bit of illegal puffery out of this vulgar movie can we please, no pretty, pretty please….find time to use the courts for the administration of war crimes against those who have now self identified themselves as having been a part of the decision and control process involved with TORTURE?

    No need to reuse old clips of past Nazi atrocities here folks. Just pull up a clip of the last day or so and watch as you hear all about how Condi, Rummy, Cheney, Ashcroft, Yoo, and many others right up to the ‘honorable’ Colin Powell decided not only that they would torture people, but MICROMANAGED the implementation and practice thereof on a prisoner by prisoner basis.

    What kind of sick f**k does that?

    Enjoy.

  226. #226 arensb
    April 10, 2008

    Stephen Llewellyn @#121:

    Never piss off a song writer.

    The version I heard is “Do not meddle in the affairs of bards, for your name is silly and scans to Greensleeves.”

  227. #227 Paha Arkkitehti
    April 10, 2008

    At UCD Dembski makes the following statement from which I haven’t heard anything before this (putting it here, if the post gets edited + I will also take a copy from the page);

    —-
    63
    William Dembski
    04/10/2008
    3:37 pm

    “It was a nice touch on the producer’s part to use the same music as the XVIVO video. Presumably they got permission from the artist — or is that another possible oversight to explore? But then again, one of the producers was for years in the music business. So most likely they’re covered here as well.”

    So, was that the case?

  228. #228 MikeM
    April 10, 2008

    Scote, #39: “Actually, this is really stupid.”

    Ya think so, eh?

    I don’t.

    That’s what I think merits a simple, “Oops, sorry.” I will allow that I’m splitting hairs when I say that, though.

  229. #229 David vun Kannon, FCD
    April 10, 2008

    And in another UcD posting DaveScot opines that XVIVO does not have standing, since Harvard holds the copyright to Inner Life. I guess he hasn’t read the letter closely enough to note that XVIVO isn’t claiming copyright on the final video, but rather over models, processes and depictions for which they _do_ hold the copyright.

    Nice hair, DaveScot!

  230. #230 James F
    April 10, 2008

    Strakh wrote @214:

    James F at #37, April 9. 2008 8:39 PM:
    Beautiful! A perfect capper to a perfect zinger!
    Thank you!

    Any time! I totally lose it right around when Starscream gets jettisoned into the void. NOOOOOOOOO!!!!

  231. #231 Olorin
    April 10, 2008

    #229: “And in another UcD posting DaveScot opines that XVIVO does not have standing, since Harvard holds the copyright to Inner Life.”

    Any lawyer worth his wingtips checks ownership before writing threatening letters. The letter does speak to the video itself. The models, etc. would be part of the infringing materials, so they’re demanding those as well.

  232. #232 James F
    April 10, 2008

    Since they like Nazi imagery, why don’t the Expelled producers substitute this little gem?

  233. #233 scote
    April 10, 2008

    “Scote, #39: “Actually, this is really stupid.”
    Ya think so, eh?
    I don’t.
    That’s what I think merits a simple, “Oops, sorry.” I will allow that I’m splitting hairs when I say that, though.
    Posted by: MikeM | April 10, 2008 5:15 PM”

    I’ll grant you that “really stupid” is, perhaps, hyperbolic. I’ll retract it if you like, but I don’t feel a need to apologies for taking stance based on my opinion. Note that I’m not, for instance, telling other people what to do, just espousing my own position on the matter. Were taking a position in an internet forum something that required apology, the forum would grind to a standstill. I think we can have rational discourse without demanding apologies from everyone we disagree with on the merits.

    Now, I would, in a less dramatic way, say that I feel this cause of action against Expelled is not the best case against the Expelled producers dishonest and farcical movie and I’m wary of copyright maximalism, a weapon that can be used against us in future.

  234. #234 mezzobuff
    April 10, 2008

    Scote: per #222:
    You are absolutely right: I DID mistake you for the other poster. Sorry!

  235. #235 MikeM
    April 10, 2008

    And I’d say you’re right, too. It doesn’t require an apology.

    A “D’oh!” head-slap, sure. An “Oops”, sure.

    I think this is a great lawsuit, and that’s probably behind my opinion.

  236. #236 Charlie Foxtrot
    April 10, 2008

    Moses #189 – Yep, joke. Just an Aussie poking a bit of fun at the Texans.
    Hope your month gets better…

  237. #237 cyan
    April 10, 2008

    Duncan @ #221,

    Hilarious! Well-done, lad!

  238. #238 Robert Carnegie
    April 10, 2008

    Re music, amusing as it would be to see the film shredded because they just made a mix tape off iTunes, that’s a mistake too moronic to be made except on purpose, i.e. if they really -are- enacting the plot of [The Producers] – lose the investors’ money and keep the excess (The Producers sold way more than 100% rights in that show, is how that worked, I think.)

    I’m not an expert but I believe that well-known recorded music often has licensing rights a long way out of the hands of the artists who created it. If you want, I dunno, a Barry White track for a documentary about penguins, all you have to do is pay the fee. That can be how the music gets to -be- well known. There may be a clause about not bringing the property into disrepute – so you couldn’t have your penguins listening to Barry while watching whales mate, maybe. But if you hear familiar music in a show, it doesn’t ncessarily mean that the artist endorsed the show or even knows that it exists, yet.

    At the end of a show, I presume you get copyright statements on each piece of music as usual – who wrote it, performed it, which soulless media gigacorporation owns it. Frankly I wonder why [Expelled] -would- use recognisable pieces of the devil’s sex-music as mentioned, since nice Christians are not supposed to listen to that stuff. And there is music of the same type that you’ll never recognise in a million years that is about as good, and way, way cheaper. So if you’re dreaming of having The Beatles’ “Across the Universe” in your film on panspermia, reconsider.

  239. #239 scote
    April 10, 2008

    “Scote: per #222:
    You are absolutely right: I DID mistake you for the other poster. Sorry!”

    Thanks. No problem.

  240. #240 Scote
    April 10, 2008

    “But if you hear familiar music in a show, it doesn’t ncessarily mean that the artist endorsed the show or even knows that it exists, yet.”

    Very true. Artists don’t necessarily own the rights to their songs and may have no say how it is used. But there can be a lot of people who own a stake in a song. The composition, lyrics and specific sound recording of a performance of a song are all separate copyrights that can be owned by separate people.

    Although a radio station can play any song as can a DJ as long as they pay fixed royalties to the performing rights organizations, music for movies is a different matter. There is no clearing house that handles sync rights for all songs. You have to individually negotiate with all the rights holders–if they’ll even talk to you. If Expelled wanted to use lots of well known songs the music rights could cost in the six figures. How much you pay, of course depends on what you want, what you want it for and how good you are at negotiating.

    I know of one company that wanted to include a Randy Newman song in a video to be played **once** for an audience of several hundred. The rights cost around $5,000 for that one time use and that was years ago.

    It can be a lot cheaper to have music scored and recorded from scratch than to buy rights to popular songs. So, the music rights for Expelled are a big deal.

  241. #241 Duncan
    April 10, 2008

    Just wanna say, before this thread dies with a whimper, I’m glad that cooler heads prevailed in all the misunderstandings upstream. On to the next exchange…


  242. #242 cureholder
    April 10, 2008

    Haven’t seen the movie, but from the description, the producers probably have a good (i.e., winning) affirmative defense under “fair use.” They show someone else’s work in order to criticize it. Like I said, haven’t seen the movie, but as an attorney, unless the facts are materially different from what I’ve described, I would say it’s probably not too good of a claim.

  243. #243 MikeM
    April 11, 2008

    cureholder,

    I looked at the videos again tonight, just to make sure, and it looks like plagiarism to me.

    http://www.youtube.com/watch?v=CVUnzk40npw

    http://www.wingclips.com/cart.php?target=product&product_id=16677&category_id=778

    You be the judge yourself.

  244. #244 cureholder
    April 11, 2008

    For #110:

    It’s not actually true that fair use defense “doesn’t apply” when the copyrighted work is used in a commercial product. The difference between commercial products and nonprofit/educational products is one of four factors used in “balancing” fair use against copyright protection. In this case, the film is (purportedly) a commercial venture (although it will actually lose money) and is also purportedly an educational venture (although it apparently is wrong about virtually everything it “teaches”).

    In balancing the nature of the film against copyright protection, the court will look at (a) how much the use of the copyrighted work enhances the profit-making capacity of the derivative work, and (b) whether the derivative work infringes on the market for the original (i.e., will the creator of the thing sell fewer of whatever because the “borrower” included it in his product that is for sale. (Both of these questions fall under the general category of “Is the borrower making money at the expense of the creator?”)

    I would imagine a court would answer in the negative on both of these. This movie won’t make any additional money (at least any identifiable amount) because it uses the copyrighted works, and the creators of the copyrighted won’t lose any sales because their work is included in this movie. In fact, the producers’ lawyers will probably argue that exposure of this material in the film will INCREASE sales for the creators.

    This is only one of four factors in the balancing test, but it’s not accurate to say the the fair use doctrine doesn’t apply. In fact, for the reasons outlined above, it’s unlikely that the commercial nature of the derivative work will weigh at all in favor of the copyright holders.

  245. #245 Monado, FCD
    April 11, 2008

    Incidentally, Peter Irons’ article in Wikipedia is short on references (other than a bibliography) and information about his latest accomplishments.

  246. #246 James F
    April 11, 2008

    Monado,

    Yeah, and it has gems like this:

    “He has undertaken some legal work in issues of the separation of church and state and written some articles for the Montana Law Review.”

    Wikipedia: UR doin’ it RONG

  247. #247 CUREHOLDER
    April 11, 2008

    MikeM (#243),

    Thanks for the links. This is my first exposure to the actual content of the film, and I would say you are right—it’s plagiarism, a/k/a copyright infringement in legalese. If I WERE the judge (rather than counsel) I think I would reject the “fair use” argument on the basis that the material is being used to bolster the derivative product rather than for any commentary/satire/criticism. Even under the “balancing” test, there seems to be no question that this is straight-up copyright infringment with no affirmative defense.

    Go get ‘em, Peter Irons!

    What a great name for a lawyer. Sounds like a porn star.

    Cure

  248. #248 Sven DiMilo
    April 11, 2008

    MikeM (#243):
    Thanks for posting that link; I hadn’t seen the sequence in question before (just a still shot). It’s so obviously copied directly from the Harvard video that it seems silly to even discuss the alternative. To me, even more damning than the walking-kinesin sequence is the initial travel down through the microfilament lattice of a microvillus. That journey makes perfect sense in the story-line of the Harvard video as the perspective changes from outside to inside the leukocyte, but is entirely gratuitous in the Expelled clip, which claims only to be illustrating “complexity.”
    Case closed!

  249. #249 Nana
    April 11, 2008

    www2.nysun.com/article/74583
    “Intrigued by what he did absorb and by a segment of computer animation commissioned by the producers that depicts life at a cellular level in its nearly infinite complexity, Mr. Stein signed on.”

    Apparently, Ben Stein saw the cell animation before joining the Expelled bunch.

    Of course the Expelled people didn’t make the cell animation because it didn’t have the finger of god pushing the cell down the walkway. heh

  250. #250 ignatov
    April 11, 2008

    Peter Irons anagram: “Stein Roper.” Coincidence?

  251. #251 Ann
    April 11, 2008

    Since there’s no need for further legal speculation, and the grammar and spelling mistakes have already been covered, I’d like to contribute to the minutiae by recommending that a couple of the “tit-wit” commenters actually look up the word aureole (plural: aureola).

  252. #252 Michael X
    April 11, 2008

    In case anyone has missed it, now up on RD’s website is an email from David Bolinsky who is the medical illustrator chiefly responsible for The Inner Life of the Cell. And the vindication is sweet. If you’d like to get a better grasp on just how much goes into depicting cells, and how gobsmackingly ridiculous it is for Expelled *jazz hands* to say they came up with it on their own, please have a read.

    http://www.richarddawkins.net/article,2460,Expelled-ripped-off-Harvards-Inner-Life-of-the-Cell-animation,David-Bolinsky

  253. #253 Don
    April 11, 2008

    Michael @252

    That is one seriously pissed off medical illustrator.

    Love it, it certainly doesn’t look as though XVIVO are looking to cut these wankers any slack.

  254. #254 James Goetz
    April 11, 2008

    Well, I guess if Expelled complies, then Expelled will have less scientific content, if that were somehow possible.

  255. #255 Reginald Selkirk
    April 12, 2008

    cureholder @242: Haven’t seen the movie, but from the description, the producers probably have a good (i.e., winning) affirmative defense under “fair use.” They show someone else’s work in order to criticize it. Like I said, haven’t seen the movie, but as an attorney, unless the facts are materially different from what I’ve described, I would say it’s probably not too good of a claim.

    I can only hope that if I ever need an attorney, I find one who pays more attention to details. The movie will not show the Harvard/XVIVO animation, properly acknowledge it, and criticize it. It will show a copy of the Harvard/XVIVO animation and claim that it is an original product. It is not at all the same thing.

  256. #256 Reginald Selkirk
    April 12, 2008

    Peter Irons sets a great example of how one can enjoy one’s retirement.

  257. #257 cureholder
    April 14, 2008

    Reginald (#255)

    Speaking of not paying attention to details, you might want to actually read what I wrote before inaccurately condemning my reading/legal skills. I specifically said, “I haven’t seen the movie” and that my analysis hinged on the facts not materially differing from what I described from what I had read. As you might also have noticed, a few posts later, MikeM posted links to the material in question, and, with the actual facts at hand, I changed my analysis (as the stuff was materially different from what I had described) and agreed that there was no affirmative defense for fair use.

    Yes, I understand that a change in facts could lead to a change in analysis. I only hope that if I ever need more clients (unlikely), I get ones that actually listen to what I say before vehemently disagreeing with something I never said.

  258. #258 Skeptigirl
    April 16, 2008

    I would have loved to have seen in the demand for remedy:

    “Unless you agree to add a disclaimer to the beginning of the film stating unequivocally that the movie contains fictional propaganda asserting that scientific alternatives to evolution theory are suppressed within the scientific community. The reality is that only theories not supportable with scientific evidence are rejected.

    Further, it is fictional propaganda that scientists and/or educators are shunned for challenging evolution theory. The reality is they are shunned for trying to ‘wedge’ religious versions of Creation myths into science classrooms in order to add credibility to their own religious convictions.”

    Of course, were the plaintiffs to do that and even without such a remedy, this lawsuit will add yet more to the false assertions that there is suppression of science when it comes to alternatives to evolution theory.

    Not that I am against this lawsuit, it is a fine response to this propaganda film. But we also need to remember the point of this movie, and the tactics being used here by the Discovery Institute, are focused on building the straw man that science suppresses alternatives to evolution. The proselytizers cannot fight on the basis of the evidence so they work hard to change the fight to one of “fairness” and scientific integrity.

    I’d love to see Frontline or some equivalent investigative reporting expose this film for the propaganda that it is. Now that would be nice.

  259. #259 Skeptigirl
    April 16, 2008

    Kevin Dorner, thanks for the link. What a wonderful animation for getting kids interested in biology and science!

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