…and this is a 
Yoko has an opponent
Category: Creationism
Posted on: May 2, 2008 1:29 AM, by PZ Myers
This is actually somewhat interesting, and I'm not going to reject all of it out of hand. The Fair Use Project of Stanford Law School is going to defend the use of Lennon's song "Imagine" in the movie Expelled.
On the one hand, they are using a very short clip — and I am not a fan of the kind of draconian enforcement of every second of a song that the music industry seems to favor. There are reasonable grounds for fair use of short clips of music … the question is whether this is one of those cases.
On the other hand, I think Premise is horribly dishonest, and this press release is personally obnoxious to me (which is not actionable, of course … it merely diminishes the Fair Use Project's credibility when they so readily buy into some of the phoniness Premise is pushing.)
The producers of "Expelled" spent two years interviewing scores of scientists, doctors, philosophers, and public leaders, including University of Minnesota biology professor P.Z. Myers, who does not support alternative theories of evolution. The clip of "Imagine," which is audible for approximately 15 seconds, is used in a segment of the documentary in which the film's narrator and author Ben Stein comments on statements made by Myers and others about the place of religion. In the documentary Stein says: "Dr. Myers would like you to think that he's being original but he's merely lifting a page out of John Lennon's songbook." This is followed by an audio clip of Lennon's song "Imagine," specifically, the lyrics "Nothing to kill or die for, And no religion too."
"We included the 'Imagine' clip not only to illuminate Ben Stein's commentary but to criticize the ideas expressed in the song," says Logan Craft, chairman and executive producer of Premise Media.
There's a lot to object to there.
It is not true that I do not support alternative theories of evolution. I do. However, I expect alternatives to be backed up by evidence; I reject the fact-free, useless nonsense of Intelligent Design, which is not the same as being close-minded, as this P.R. implies.
Stein's commentary is ludicrous. I did not claim originality, so accusing me of doing so is false. Lennon's song is also not relevant to what I said; I had just said that science erodes religious belief, and that the atheist goal is not the elimination of religion, but a reduction of its impact in secular functions, like government (my infamous comment about 'knitting'). Imagine says nothing about science, or knitting for that matter. The song actually doesn't follow from what I was saying.
The claim that they were commenting on the ideas in the song is false. This movie was not about how artists are excluding creationists from their discipline, but about scientists. The song doesn't discuss science or creationism or the academy, any of the themes of the movie. It's just a pretty and extremely recognizable popular melody; they are using it as background music to a series of images that they want to use to generate a negative emotional response to my argument. They could have used any music and still made the same point.
So, really, what I detest is that, as usual, Premise Media is lying. Their rationalizations are completely bogus.
If they'd been more honest, though, and were simply arguing that, hey, a quick 15 second clip of a popular song ought to be acceptable use, I'd be sympathetic (now maybe an artist with a more personal appreciation of the ownership of an artistic creation would differ…), but they just don't seem to be able to do that. They've got a compulsion to lie and try to claim that they were directly addressing John Lennon's work, which they most clearly were not doing.
Of course, if they were capable of honesty, their movie wouldn't exist.
Comments
I don't know the details of fair use, so I won't presume to comment on the legality, but I do think that the commercial usage should play a heavy part in the judge's ruling. If this were just some vlogger using 15 seconds in a youtube video, that would be one thing, but in this case it's in a slickly produced, commercial film. To my common sense (again, lacking any basis in legal knowledge) it seems like a fairly important difference. (Also, just personally, I'm rather offended by the way they've misappropriated Lennon's message in this song. It's certainly somewhat over-simplified, but it's a pop song, not an analytical essay. How would, "Nothing to kill or die for, and no religion -- and I'm not talking about Stalinism since the cults of Lenin and Stalin were actually pseudo-religions in and of themselves and very dogmatic, and by the way, the majority of Nazis were religious, Gott mit Uns, etc -- too..." sound in a catchy tune? Not very good, I would imagine.
And on the subject of imagination, and music...I like to imagine overlaying these words to the Battle Hymn of the Republic whenever Stein talks about how the compassion and love of God makes us good, kind people (whereas science leads to killing people):
Posted by: Etha Williams | May 2, 2008 2:04 AM
Well, if you play with the words a bit --
Imagine there's no heaven
It's easy if you knit
No hell below us
We've all become atheists.
Imagine all the people
Doing science in the lab!
The knit/atheists rhyme's a bit shoddy, but it was the best I could do...I'm no Cuttlefish.
Posted by: Etha Williams | May 2, 2008 2:11 AM
PZ, I have an amateur/atheist interest in biology and evolution, and that's why I come here, but you're out of your league here.
You're going to the Ironman movie now, right? Before that was released, the hot trailer on the 'Net had a whopping 4 seconds of the signature lick from Black Sabbath's tune of the same name, right at the end of the trailer.
Gee... 'ya think the studios paid for that? Right, they did. Study up on copyright law and fair use and all the relevant court cases, before making statements like that, unless you want to mimic the creationists who question evolution without reading the core texts in the field.
I made a living from copyrighted material my whole life as a creative artist (mostly visual arts), and even though it's the flavor of the month to assume all this creative effort is "free"... it isn't. At least not yet.
Posted by: foldedpath | May 2, 2008 2:13 AM
Ok...I just listened to 15 seconds of several songs at random on my iTunes shuffle and I've got to say...just based on the subjective experience of listening, I'd say 15 seconds ain't trivial. There's quite a lot of music going on there. (And in fact, in my occasional ventures into composition for my school's fine arts requirement, it's taken me about 5 hours to write a simple little 90 second melody -- that's almost an hour for 15 seconds. And it wasn't even very good. And that doesn't include the time/$ for performers, a studio, etc...)
Posted by: Etha Williams | May 2, 2008 2:23 AM
Um, what conceivable relationship does this have to what he said? Are you arguing that the status quo of law and business practices is invariably and by definition right?
Posted by: Azkyroth | May 2, 2008 2:32 AM
@foldedpath #3:
To be fair, "be sympathetic" doesn't mean "condone". I would be sympathetic as well, but unless an artist chooses to release that work for free use (as some have) then I really do believe he or she should be able to make copyright claims. The difference, though, is between some kid having fun and not making money on YouTube and a film producer who could pay for the use and consider it an investment. Even if the producers of some hypothetical film were some of the most honest people alive and genuinely did not know that use of a song wasn't covered under Fair Use, we might have sympathy for them - but we would also expect them to have done their homework since they are out to make money.
Maybe one of these days we'll figure out how to let artists make money without having to resort to treating people like criminals, but until then it's always a judgment call - which I think was the point in the first place.
Posted by: Ryan Egesdahl | May 2, 2008 2:36 AM
@#3 foldedpath --
As I have mentioned before, I know very little about fair use doctrine, but based on my limited knowledge and my reading of the article, I imagine (bad pun) that the argument that the Stanford people will make is that it isn't just the time, it's the fact that the Expelled people are trying to critique the ideas expressed therein. In the article, they are quoted as saying:
I'm not really cleared whether "quoting" can really translate to "replaying the song" here, nor even on whether any of this is legally grounded, but in any case I don't really see why they couldn't have just quoted the lyrics in Stein's droning, monotonous voice. It would have probably been less likely to spur litigation, and couldn't have made an awful film much worse.
Posted by: Etha Williams | May 2, 2008 2:40 AM
(Incidentally, I would disagree that this could be covered under fair use since this was unambiguously commercial exploitation; I suppose you might be able to argue that they've twisted the implied meaning of the song so much that, in the context they used it, it's "significantly transformative," though.
I agree that there are sound, intelligent arguments against sympathizing with or condoning Premise's usage. Foldedpath's comment was not one of them.)
Posted by: Azkyroth | May 2, 2008 2:40 AM
@#8 Azkyroth --
No, no, it was critique! Critique, critique, critique! (This is what the Stanford people will be claiming anyway.)
This is a general pattern in the Expelled saga -- masking opportunistic exploitation and twisting of various things (statements by biologists, humanistic songs, the Holocaust, "explusions" of "scientists", etc) by pretending to actually be interested in exploring and critiquing them (best exemplified in the e-mail PZ and others received about "Crossroads").
I'm wondering if the Stanford people are really buying the critique thing, or if they just see a chance to be involved in a somewhat high-profile case.
Posted by: Etha Williams | May 2, 2008 2:46 AM
Just out of curiosity (genuinely): Are there any proper, scientific, viable, alternative MODERN theories of evolution?
If so, what are they??
Posted by: shonny | May 2, 2008 2:49 AM
@#10 shonny --
I think PZ may be talking about alternative hypotheses about the mechanisms of various aspects of evolution that are currently being debated amongst scientists -- things like the neutralist-selectionist debate re: molecular evolution, of which Graur & Li said in 2000:
:) The debate is indeed still going on, and the title prediction Graur & Li made has been demonstrated as recently as just this year, in a paper entitled "Toward a Selection Theory of Molecular Evolution". It seems clear (to me anyway) that the mechanism of molecular evolution is probably some combination of neutralism & selectionism, but the frequency/contribution of each type is still under a lot of debate.
Posted by: Etha Williams | May 2, 2008 3:11 AM
When the revolution comes, the bourgeois selectionist capitalist pigs will be the first against the wall!
Sorry. It's all the Stalinist rhetoric. I think it's starting to get to me.
Posted by: Thomas S. Howard | May 2, 2008 3:37 AM
Thanks Etha,
But that was not what I had in mind, - more if there are other scientific theories about life on earth out there that are not under the aegis of Darwin's.
Did a google, and nothing came up, so . . . Darwin rules :^)
Posted by: shonny | May 2, 2008 3:46 AM
So, PZ, do you expect to be called by the prosecution?
Posted by: AndyD | May 2, 2008 3:48 AM
They are wrong, they are liars, they are deceptive and immoral creeps. But I'm not sure they should be stopped from using the song. Just because we don't like their choice of how to employ "fair use" doesn't mean they shouldn't be able to do it.
But I guess it's up to the court to determine if they meet whatever criteria fair use requires.
Posted by: Ryan | May 2, 2008 3:50 AM
#1:
Actually, I disagree. The "fair use" formulation is pretty reasonable here; the point about "fair use" is not whether the use is commercial or not. Given that they're trying to invoke the "commentary or criticism" angle, it's particularly important as to whether they are in fact legitimately critiquing the work from which they copied.
This is not a triviality: a commercial production should legitimately be able to incorporate sufficient excerpts of some other work which it seeks to criticize or comment upon for that purpose. On the other hand, non-commercial copying of some work for no purpose other than not to pay the author is not ok.
So here we find the producers of "Expelled" tying themselves in knots trying to pretend that the use of "Imagine" was for the purpose of criticizing the work "Imagine", which it very plainly wasn't. Unless they can make that argument fly in court (and that should be entertaining) it would appear that they simply appropriated the work for their own purposes without paying for it. Whether or not the use was commercial has no bearing on that question...
Posted by: Brain Hertz | May 2, 2008 3:51 AM
Yes, until the courts (at least here in the USA) rule otherwise. The ability to license creative works through copyright law is how some of us pay the mortgage, and raise our kids.
The legal status of this stuff isn't that obscure. Look it up. It's a lot easier to understand than most things discussed here.
Posted by: foldedpath | May 2, 2008 3:56 AM
You know, you atheist-scientist Nazis are being completely unfair. Ben Stein would have ABSOLUTELY paid for the 15 seconds if he felt it wasn't acceptable use. Just like he gave XVIVO credit for The Inner Life of the Cell...
"That the creationists have resorted to this subversion should surprise none of us, for the ethical poverty of their actions matches the intellectual poverty of their beliefs."
- Peter Atkins
Posted by: Jata | May 2, 2008 4:12 AM
The useful thing about Fair Use is that you can invoke it even over the objections of the copyright owner. This why PZ can post clips from the promotional DVD of Expelled. The use of Imagine may well fall into fair use, which is not determined by whether a film is commercial or not but by a multivariate four factor test.
It behooves us to support fair use since it is such a useful tool for criticizing creationist nonsense. It is much more effective to show photos and clips of Stein making a fool of himself than just to describe it. We need fair use, so reflexively denying it to the scum at Premise is shooting ourselves in the foot and is a move that could easily haunt us in the future if Fair Use rights are eroded..
Posted by: Scote | May 2, 2008 4:17 AM
I've been saying this for a long time, and I'm glad the Stanford Project people are taking it up. I agree with their analysis (or, since I went public first, they agree with mine) ... although the point doesn't seem to be controlled by any binding precedent.
PZ, it in no way diminishes their credibility; on the contrary, it increases their credibility that they are prepared to act for a client that is pretty shonky, but is (at least very arguably) in the right on this specific issue. It makes them look all the more as if they are principled, which is what their peers in the legal profession and the law schools will care about.
Come on people, don't lose track of the larger issues of jurisprudential principle just because the Stanford Project's clients are (in other ways) the bad guys.
Good for the Stanford Project for taking on this case. Let's see this point tested in the courts and determined one way or the other.
I also think those of us who are uppity atheists would look more principled if we always defended our opponents' rights. In my case, I really do care about fair use of copyrighted material, even when the use is made by the Expelled folks, for whom I have no love at all. We should be principled in this way, rather than cutting our positions on public policy issues, such as overreaching copyright law, in accordance with expediency or emotion. In fact, being principled on the policy issues that matter to us should be a key element in our strategy to be taken seriously in the formulation of policy.
Similarly, I supported Catch the Fire Ministries, here in Victoria, when it was accused of religious vilification of Muslims, even though I am no fan of Catch the Fire Ministries or any other fundamentalist pentecostal group.
Posted by: Russell Blackford | May 2, 2008 4:17 AM
Now I'm confused. I thought the movie's chief premise argued that Darwinistic big science leads to atheism which in turn leads to the holocaust and mass killing. Yet this segment of the song surely argues the exact opposite.
Posted by: Wallace Turner | May 2, 2008 4:17 AM
Wallace Turner:
Yes, well, no one said they were any good at making pointed cultural critiques. I mean, they're incompetent at filmmaking, marketing, PR, research, logic and all sorts of other stuff, so they probably just suck at cultural criticism too. Or they're full of shit.
Posted by: Thomas S. Howard | May 2, 2008 4:29 AM
Ben Stein is not the producer of the show, so he would be in no obligation to pay anything...It's a producer issue...
"It is not true that I do not support alternative theories of evolution. I do."
Really? What other alternative would PZ Meyers accept? As far as the 15 second use of the song...
In the documentary Stein says: "Dr. Myers would like you to think that he's being original but he's merely lifting a page out of John Lennon's songbook." This is followed by an audio clip of Lennon's song "Imagine," specifically, the lyrics "Nothing to kill or die for, And no religion too."
What is described there is a commentary setting...All other variables like who Expelled interviewed, and the other description about the creationist movie whether you agree with it or not, doesn't have relevancy for the song "Imagine." Evidence, is the factor in determining guilt or not...
Posted by: Michael | May 2, 2008 4:32 AM
Michael:
It's also the factor in determining science, so any alternative to evolution would need some. Which is what PZ wrote:
Is it really that hard to read something carefully before you try to poke holes in it?
Posted by: Thomas S. Howard | May 2, 2008 4:39 AM
Stein says: "Dr. Myers would like you to think that he's being original but he's merely lifting a page out of John Lennon's songbook." This is followed by an audio clip of Lennon's song "Imagine," specifically, the lyrics "Nothing to kill or die for, And no religion too."
Isn't Stein's introduction here just patently false? Does he have any justification for (1) assuming that PZ believes that his position (atheism) is original, or (2) PZ reached this position by listening to the lyrics of "imagine"???
"We included the 'Imagine' clip not only to illuminate Ben Stein's commentary but to criticize the ideas expressed in the song," says Logan Craft
I don't see that playing the song after the interview of an atheist amounts to a criticism of the song. It seems to me that it is just a device to polarize the Darwinian/ID issue in alignment with atheism/theism.
Posted by: Neil | May 2, 2008 4:39 AM
Michael:
Right, which is why no such thing appeared in PZ's text. Now, read it again, and keep doing that until you get it right. Then we'll talk.
Posted by: Thomas S. Howard | May 2, 2008 4:43 AM
Since they make no mention of the song itself, nor does PZ, and only use it as audio background in a discussion of science and the place of religion, I don't really see how they can argue it as a critique of the song. If anything, it sounds like they're trying to use the song as a critique of PZ, making it a piece of supporting evidence for their argument, not the point of contention. I grant I haven't seen the movie, but unless they're running it along with footage of atheists burning bibles or something, I don't see the song as being critiqued.
Posted by: Esme | May 2, 2008 4:44 AM
Fair Use is the term used in US copyright law. Elsewhere, for example, in the commonwealth nations, it is known as Fair Dealing. While the concepts are similar, the laws are not identical and there is a good chance that if Ono were to go after distributors of Expelled in one of those countries, the results could be the opposite of those in the US.
It will be interesting. Especially to the expensive lawyers.
Posted by: JohnnieCanuck, FCD | May 2, 2008 4:46 AM
I really don't think this should hold up as a "critique" of the work. If it does, you could use any song in any film without licensing it by simply claiming you used it in an ironic context.
Posted by: delphi_ote | May 2, 2008 4:53 AM
If I were to produce a film whose premise was 'love is a bad thing', would it be 'Fair Use' to include a soundtrack of 15 second clips of every love song under the sun?
Posted by: Neil | May 2, 2008 4:58 AM
Well, silly me. I argued earlier that copying songs would cost them, forgetting that they could use the content as a sort of commentary. Which critiques should be able to do. (The problem that the "critique" in this case is blatant propaganda isn't relevant, I presume.)
So, as IANAL and fair use is an exclusive US legality, I'm interested in any insights into the technicalities here. Apparently the fact that its use was of commercial nature will be of importance among the 4 factors considered, as well as if the intended critique was "transformative":
Seems to me the Expelled producers have a problem - when they claim that they are criticizing the ideas of the song it is isn't a critique of the song "in particular, but of society at large" as they picture scientists wants to see it.
But what exactly is "transformative use"? And how does it stand up to the fact that there isn't any material in the critique? (It is in fact is listed as a logic fallacy in Wikipedia, as argumentum ad Nazium.)
Also I don't understand the defense as it is described here. IIRC Yoko Ono claims that the Expelled movie is hurting the songs value (factor #4). Shouldn't they answer that? It would be nice to see the respective filed motions, however it seems the relevant (?) PACER service center is a pay service.
Posted by: Torbjörn Larsson, OM | May 2, 2008 5:23 AM
Oops! "the song's value" - seeing that Russell is commenting here. ;-)
Posted by: Torbjörn Larsson, OM | May 2, 2008 5:30 AM
Well, looks like Michael high-tailed it back to his creationist blog. But, just in case, one last reading lesson:
Alright Michael, you pay attention now.
So, you said:
Now, that part in italics? That's from Premise, not PZ. That's their defense of their use of Imagine. Yet you appear to attribute it to PZ and then criticize him for it. So, you either really suck at reading, or like your fellows in creationism, including ID, dishonest quote-mining is just another tactic for you to employ in Jesus' name. So, if you have a complaint about the mentioning of all those interviews and the other "variables", take it up with Premise. They wrote it. They released it. What PZ did was quote it, honestly, then criticize it. The point being, that Premise can't seem to be anything but dishonest, and not that any of PZ's criticism constitutes a valid legal argument. So, if you ever do manage to learn to read properly, you might realize that you've just seen a textbook example of legitimate fair use.
If, on the other hand, you really do know how to read (and I suspect you do, but prefer to grant you the benefit of the doubt because you may just be stupid) you will also hopefully learn not to quote-mine when the source text is right there on the same damn webpage.
And that concludes our lesson. Now run along and do try to be a good boy.
Posted by: Thomas S. Howard | May 2, 2008 6:17 AM
I work in the TV industry in the UK and i can tell you that AFAIK this would not fall under any fair-use clause that i've ever heard of. When making documentaries here everyone knows you NEVER use commercial music without clearance, especially not anything Beatles/Lennon related. We would normally go to the publisher of the song for clearance for use and then pay the owner of the recording depending on how many instances of the music in the film and how many seconds. The price depends on how many transmissions in what territories etc and for a movie i would have thought the rates would be pretty high. Publishers of the music and owners of the recording can, and do refuse to let their music be used and i don't think there's a great deal you can do about it if they do. Anyone who uses music in a commercial film without permission is either a) asking for it and/or b) a fucking amateur.
Posted by: Carpworld | May 2, 2008 6:29 AM
To be clearer, much of what is in the press release that PZ quotes from is indeed nonsense. But press releases by clients are neither here nor there, as long they don't make damaging admissions.
The legal point that needs to be tested, which the press release does allude to in an imprecise way, is in what circumstances fair use applies to the hostile use of a song when part of it is played over images designed to comment ironically on its message. In my opinion, such a juxtaposition should be allowed in some circumstances, and this looks to me like such a case.
We've thrashed this issue to death on one or more other threads, so I assumed that it would be clear what I was talking about. However, I then realised that it wouldn't be clear to anyone reading this thread who hasn't been following the debate day by day. In any event, there does seem to be a reasonable argument that fair use applies here, and it's no wonder if the people in the Fair Use Project at Stanford are keen to test the point.
Posted by: Russell Blackford | May 2, 2008 6:52 AM
IANAL, but the crucial point is, surely, that the excerpt from the song was used to label PZ as unoriginal, not to critique the song. There is certainly no explicit critique of the song, so the "fair use for critical analysis" doctrine does not seem to apply. It seems to me that they must argue that there is some kind of implicit critique. I wonder if there's any precedent? I would think that this is the reason why Stanford Law are interested in it: to establish (one way or the other) a legal precedent for extending (or not) fair use for critical purposes to include implicit criticism of a work by allusion or association. It seems rather broad and vague and to open the floodgates to specious defences for copyright violation. I'd be surprised if a judge went for it. But hey, what do I know, IANAL.
Posted by: Emmet Caulfield | May 2, 2008 7:16 AM
I still find it telling that the other song used, "All These Things That I've Done" by The Killers, had the copyright usage cleared in the normal way. I suspect the difference is simply that it's a far less recognizable song and group, and being sued by The Killers would not have garnered any additional publicity.
I believe that Stein and his group wanted to provoke a big public fight with Yoko Ono and the Lennon estate, and got exactly what they wanted. Whether that turns out to be a wise tactic remains to be seen; I suspect that they'll find that the public's sympathy will be more on the musicians' side, except of course for the choir they're preaching to.
Posted by: BT Murtagh | May 2, 2008 7:53 AM
Couple of things my mind stumbled upon in a brief respite ...
"Nothing to kill or die for, And no religion too."
... I wondered, why would a true ID proponent have a problem with the lyrics anyway? I mean, IDiocy isn't a religion right? Nothing whatsoever in any way to do with a 'god' or anything. So why would the expelled gang have a problem with it anyway?
BTW according to the official Expelled site, "Ben blows the horn on Suppression". Is that some new technique? Or do they mean "on Compression" (stroke)?
Tasker
Posted by: Tasker | May 2, 2008 7:53 AM
"maybe an artist with a more personal appreciation of the ownership of an artistic creation would differ"
As a working composer, I most certainly do. For one thing, fifteen seconds is far, far beyond any reasonable definition of fair use. I'd sue the pants off anyone who used 15 seconds of my music in a movie and didn't ask permission or pay me.
For another, Europe recognizes an author's right to control the uses to which his/her art is put. My experience in the US is that this is also honored, if not strictly in law, then almost universally nevertheless. I have been asked numerous times to license my oratorio Voices of Light for movie trailers, documentaries, perfume commercials and the like. I have turned all down despite offers in the mid five figures for less than 30" of music and those refusals have been honored.
The one exception was K-19, when two exceptional artists, Walter Murch and Kathryn Bigelow, asked to meet with me to discuss using my music in their film. Because no one has the right to deny genuine artists access to material, I immediately - and happily -agreed. And I was compensated, of course.
It is outrageous that Premise would try to steal Lennon's music and and try to profit from Lennon's hard work and talent without asking permission from his estate or paying a fee. To lay people, fifteen seconds sounds trivial. To those of us who work hard to earn a living in music - and Lennon worked harder and better than most - I can assure you that fifteen seconds is a lifetime.
Posted by: tristero | May 2, 2008 7:55 AM
Wow. Creationism or copyright. Now I have to decide which one I hate more.
My biggest beef with musical copyright is in television. In the 70's and 80's and early 90's, before shows where released on VHS and DVD, songs were only licensed for broadcast. So when, say, the DVDs of Northern Exposure or WKRP in Cincinnati, a crew of lawyers had to track down the rights owners of all the incidental music in the show -- and there is a lot -- and negotiate a new rate. I don't know if it was too much work, or if it was too expensive, or what, but most of the original music was replaced with insipid muzak in the DVD releases.
It doesn't sound like a big deal, but both WKRP and Exposure had radio stations in the show, and a particular song was often key to the plot, so removing the song is basically changing the episode away from its original intent.
This is so important to people, they'd rather download crappy quality VHS recordings of the original show.
And never mind shows like the "Muppets" which feature exclusively musical performances. I imagine most of the work involved in releasing a season goes into tracking down and negotiating the musical rights.
For Expelled, I don't think a music owner should have a right to decide where the music is used, but they should have a right to a standard compensation.
Posted by: inkadu | May 2, 2008 8:02 AM
Judging from how dishonest they've been with virtually every step of this suckumentary you'd hope that could be used as some sort of pattern of operation that would weigh in against the copyright issues.
My understanding is that the Killers were duped in the same manner that they lied to PZ and Dawkins. The Killers didn't know what the actual theme of the movie was, and have since asked for the song to be removed but it was "too late"
Here is a blog quoting some interaction with the bands people. Take it for what you will.
Posted by: Rev. BigDumbChimp | May 2, 2008 8:05 AM
So, went and actually read Michael's stuff.
Quite an achievement. It's even less accurate than your average creationist anti-evolution screed. I mean, he doesn't really try to even quote-mine properly. It's basically just near-entirely citation-free stuff he apparently made up and/or copied and pasted. For example, there's a "law of probability". Just the one, and it was invented in the 20th century, going by who Michael attributes its invention to. Actually, what Michael's trying to talk about, and failing to, is Borel's (non-existent) Law.
Getting back to the egregious lack of proper quote-mining, occasionally, there is a quote in the "original" writing, but mostly they just get dropped in as a sort of section divider. Like, for example, this one from noted biologist Niels Bohr:
Oh, wait. That's right. He was a physicist. Something else: he wasn't saying precisely what Michael seems to think he was. Shocker. He was also, most importantly, wrong. But, hey, it was 1933 and he was onto something with the complementarity angle, so I'll cut Niels some slack. The rest of the anti-evolution stuff is just reprinted crap from the ICR and, God help me, George McCready Price. Now that's some seriously old time fucking religion there.
Anyway, I'm gonna cut Michael some slack too, because it appears he really is stupid. Dishonest too, but I think the stupid dominates. He's also very bad at Intelligent Web Design and thinks Harry Potter is evil.
Posted by: Thomas S. Howard | May 2, 2008 8:05 AM
Wow, good work, #31. Everyone else, read that comment. (And if you don't get it, read #16).
I personally don't believe Expelled is a criticism of John Lennon's Imagine. True, Expelled's producers claims to use the song for "ironic" effect, but as social commentary in the context of the film.
As a sidenote, I would argue that Expelled _doesn't_ achieve irony with its use of Imagine: as is my understanding, the song is played during a slideshow of photographs depicting Nazis and the horrors of WWII. Nazis weren't atheists, Hitler claimed his evil genocide was the work of the Lord, and Nazi soldiers wore a belt buckle inscribed with the words "God With Us". Therefore, the slideshow--taken independently--can only be interpreted as emphasis of the song's message. "Nothing to kill or die for/and no religion, too..."
Of course, this is mostly irrelevant to the legal issue, but does help to emphasize that Imagine is being used to make more general social commentary, not commentary against the song itself. Criticizing John Lennon's personal opinions expressed in Imagine would be wildly out of context with the rest of the movie. John Lennon wasn't a scientist, the song has nothing to say about evolution, the song is presented in a manner that strengthens its lyrics, etc.
Obviously, the Expelled team intended to use Imagine for social commentary, not commentary against the song itself. Not only that, but they use about 9% of the song without giving an explicit reason inside the film--the equivalent would be like me taking almost 20 minutes of Expelled and putting it in my own movie "for ironic effect"! If a judge rules in favor of the Expelled team, he will strengthen fair use far beyond its intended protections. So long, spirit of the law!
Posted by: falterer | May 2, 2008 8:06 AM
I should have mentioned that I am not a lawyer, and this issue will be decided on its legalities, of which I am a poor judge.
All I can say is that my sympathies are torn. I very much like the principle of fair use, and I think it is good that Stanford Law is stepping up to defend that principle.
On the other hand, artists should be compensated for their work, especially when they produce something as popular and recognizable as Imagine. In this case, too, the defendants are lying about their motives, which strips them of a lot of my sympathy.
I'll just be sitting back and watching the show. Whatever the judge decides will have to be OK for me, although I confess to a personal hope that he will sock it to the lying bastards.
Posted by: PZ Myers | May 2, 2008 8:19 AM
@39 tristero
Not sure if others are familiar with "Voices of Light" (they should be) but I've loved your work ever since I became familiar with it -- Hat's Off, Sir. And may I say that I will defer to anything you have to say on this particular topic.
(Now, if Arvo Part is lurking here, I wish he'd show himself as well -- but somehow I doubt that :)
Posted by: Geoffrey Alexander | May 2, 2008 8:25 AM
"Nothing to kill or die for, And no religion too."
"We included the 'Imagine' clip not only to illuminate Ben Stein's commentary but to criticize the ideas expressed in the song," says Logan Craft, chairman and executive producer of Premise Media.
What part of "nothing to kill or die for" did they criticize? Or even address? Obviously, the morons in their target audience are supposed to equate "no religion" with communism. Which is the same thing as Naziism of course.
Posted by: Cheezits | May 2, 2008 8:25 AM
Interesting that FUP includes extending the boundaries of "fair use" in its mission statement. From my understanding of Fair Use, it seems to allow commenting on the work in question. To extend this to mean commenting on any concept or opinion contained within the work would surely render copyright laws completely meaningless.
The central message of "Imagine" is surely an observation that nationality, wealth and religion are all factors in dividing humanity and that we would be better off without these divisions. Are the producers of Expelled under the impression that Lennon's message was really "let's get rid of religion so we can return to leaders like Stalin and Hitler"? If this is so, I think that Lennon did a pretty poor job of it.
If they are arguing that the film is commenting on "Imagine", then surely the commentary should have some validity. Otherwise, we could include any song in any film and claim some entirely bogus argument that the film was somehow 'commenting' on the song. Lennon's song makes no mention of Darwinism or the existence of god or gods. "Imagine" proposes a Utopian world, without war or conflict, and suggests that religion is one of the factors standing in the way of that ideal. Does Expelled concretely argue that religion is not and has never been a factor in human war or conflict? What, then, is the basis of their criticism?
Posted by: Neil | May 2, 2008 8:44 AM
Credentials note: I am an intellectual property lawyer - I don't play one on TV.
Caveat: I haven't seen the movie or the use in question.
With that, the clip as described doesn't seem to be a cut and dried situation. As others have pointed out, the determination of fair use is governed by four factors that are outlined in the Copyright Act:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 USC s. 107. The fact that the clip is being used in a commercial movie does weigh somewhat against the fair use claim, but the courts have been mindful that many creative works are meant to be commercially exploited. A rule that if use of someone else's copyrighted material in a work that is intended for commercial exploitation is per se unfair would create an exception that swallows the rule. And, indeed, one can find cases where fair use has been recognized in the context of a work that is going to be sold commercially. (The case of the Margaret Mitchell estate vs. the parody work "The Wind Done Gone" comes to mind.)
Now, based on the fact that Stein made a passing reference to John Lennon coming up with the idea of no heaven, etc., and then using the music over the clips of atrocities, there may be a fair use claim. A court may regard this as a fig leaf (and honestly, it does have the smell of a lawyer's advice about it), but it is not the kind of claim that is amenable to a summary disposition. So, much as I despise the agenda of Premise Media and what they're trying to do with this film, I can't say that they're definitely on the wrong side of this question. One of the damnable things about being committed to First Amendment values is that you're forced sometimes to defend the rights of people you despise. Those who have no real commitment to the First Amendment have no problem with saying that free speech and free exercise rights should only be afforded to those that agree with them.
Posted by: Sanjiv Sarwate | May 2, 2008 8:47 AM
"The infamous proposed Christianist license plate for the state of Florida, the one that said "I believe", is dead. The supportive faith rays emanating from the prayerful public were apparently not strong enough to overcome the ass-suing beams radiating from the likes of the ACLU."
Maybe Yoko should borrow the "ass-suing beam" generator from the Florida ACLU.
Posted by: chriss | May 2, 2008 8:48 AM
The perfect theme song for Expelled is Evolution Rock.
Absolutely fantastic!
http://www.youtube.com/watch?v=_gTrjgkYTMk
Posted by: GBruno | May 2, 2008 8:54 AM
The real trouble here is what copyright activists have been saying for a long time-- fair use is interpreted in a huge number of different ways, and is open to legal misinterpretation. The copyright system is severely messed up in general, so it's only more and more likely for these sorts of things to crop up.
Posted by: DaveX | May 2, 2008 9:01 AM
A couple of comments:
1. I think the movie does make a comment on the ideas expressed in "Imagine", and obviously uses PZ's remarks as a springboard for doing so. The point they're trying to make - with their usual flair for dishonest rhetoric, of course - is that the atheist utopian vision of "no religion" is, at best, childlike in its naiveté - a childish game - but one which leads to the not-so-innocent ends of communism, Stalinism, and the horrors that necessarily follow from the creation of a godless society. Bullshit or not, they're addressing the idea expressed in the song (whether those ideas line up with PZ's remarks is irrelevant to the fair use issue) and if fair use covers the use of 14.999 seconds of the song for that purpose, it would seem that Premise is covered. For better or for worse.
2. The use of the "Iron Man" theme in the I.M. trailer is another thing altogether. I can't formulate an argument demonstrating that the film is attempting to critique ideas expressed in the song, so I can only conclude that the use of the theme is for the sole purpose of promoting the film. I'm gonna take a wild guess here and say that that is not covered by fair use. ;-)
Posted by: Kseniya | May 2, 2008 9:22 AM
To me, it just sounds like another bullshitty excuse for stealing. They just chose it as background music and are trying to justify not paying for it as they should have. They weren't in any way discussing the song itself or critiquing it, so I'd be amazed if they managed to argue fair use. On the other hand, legal judgements and what's right and sensible aren't always highly correlated.
Posted by: DrFrank | May 2, 2008 9:27 AM
Thanks, Sanjiv. I was once, for a time, basically an employment/labour relations lawyer - definitely not an intellectual property lawyer, even though intellectual property issues would sometimes come up around the edges of employment contracts, etc. These days I am, at best, a philosopher of law, out of touch with all the detail and the exigencies of practice, and I can only express views based on fundamental principle as to how the law supposedly fits together. It was nice to read a view from someone who, unlike me, seriously knows what he's talking about.
Posted by: Russell Blackford | May 2, 2008 9:39 AM
I'm a librarian and not a lawyer, but I know a thing or two about copyright, and Premise Media should have a fairly strong defense against this claim under Fair use, and I hope they prevail. The fact that otherwise I personally think they're lying scumbags is irrelevant. If the courts rule in favor of Yoko, it sets a very bad precedent indeed.
Bear in mind that FFRF uses a larger sampling of "Imagine" as the introductory song to its podcast; I don't know if FFRF pays royalties to Yoko & Co. for its use or not. It's kind of an unofficial atheist anthem, after all.
My point is, Sanjiv is very correct in that defending the 1st Amendment sometimes means defending people who may despise you, and you them, but the law is meant for all, and a badly formulated, punitive ruling could always come back to bite you--and causes you support--in the @ss.
Posted by: JJR | May 2, 2008 10:08 AM
Pretty sure the song is in the movie as well and my guess is that it was licensed. I haven't seen the movie (yet) but I heard it was in there from someone who went to a pre-screening.
Posted by: Rev. BigDumbChimp | May 2, 2008 10:08 AM
I'm about the only regular commenter at rawstory who is a skeptic (lots of atheists, but lots of CTers, especially 911 and altmed), and have been having great fun playing with Larry Fafarman over this topic. I had heard about him, but had never before stood at the temple of stupid and talked to the high priest before. I'm starting to get bored with him, and may go find another mouse soon.
His claim that "imagine no possessions" is an abandonment of copyright is a don't miss, as is the appeal to the kindness of Ms. Ono, or that she already has a memorial park in NYC, and that should be enough for anybody.
---------
IANAL BAMOOTL (But Am More Of One Than Larry), as to fair use, I'd say that enough of the fair use guidelines are violated here for it to fail easily. If you google "fair use worksheet," the current first and second links will take you to worksheets that let you compare fair use vs not fair use factors.
A couple of interesting points are that the length of quote is in regards to the length of the work. 15 seconds being fair is something of an urban legend. Most of us would remember Vanilla Ice's use of a looped bassline of Queen/David Bowie's Under Pressure in Ice Ice Baby. Those few extremely recognizable and substantial seconds of Queen's work led to Ice settling for an undisclosed amount.
For a 3:01 song, 15 seconds is 8%, and since Premise has previously stated that the amount used is 25 seconds, this tops 13.8%. That is a clearly significant portion, and the lyric quoted is one of the most important and evocative lyrics in the song, making it substantial, and the use unfair.
Bad faith behavior is included, and it should be easy to demonstrate this as a theme in the production of the film.
Posted by: Robster, FCD | May 2, 2008 10:20 AM
When Yoko wins this case, I hope she'll give the proceeds to benefit science education (or arts education).
Posted by: SplendidMonkey | May 2, 2008 10:31 AM
Here's the way I read the situation, based on the description of the song's usage in PZ's post and the comments.
First, Expelled shows PZ giving his opinion that religion's role in public life should be reduced.
Then, Stein makes a claim that PZ stole this idea from the song "Imagine" -- as if no one had ever expressed such a view prior to the 1970's.
Finally, the film plays the excerpt from "Imagine" while juxtaposing its anti-religious message with scenes from Nazi Germany (and perhaps other totalitarian states).
Now, there are several issues here (such as the implication that PZ somehow plagiarized Lennon, and that Nazi Germany was atheist, both of which are dubious). But it seems to me that the one issue that has Fair Use implications is this: was the film critiquing "Imagine", or PZ Myers?
I think one can make a case either way. By showing images of "evil regimes" while playing an anti-religion message, the producers are essentially mocking the idea that the world would be a better place without religion (or with less religion). That idea is expressed by both PZ and the song. Therefore the imagery is a critique of the song.
On the other hand, when taken as a whole, Expelled is NOT about music criticism, or criticism of Lennon or his ideas. It's a criticism of the scientific establishment in regards to its (asserted) atheism and materialism.
In my opinion it will be tough to convince a judge that the intent of the "Imagine" clip is commentary on the song itself, or even on the songwriter, when the whole thrust of the film is in a totally different direction.
Posted by: Donnie B. | May 2, 2008 11:00 AM
They were trying to trivialize PZ's points as well, by pretending that they came from a pop song.
PZ wasn't saying anything original, from what I gather, but what he said didn't come from a song which isn't trying to make any sort of argument, only portraying a kind of treacly (sorry John, it is) utopian hope. What PZ's sources are I don't know, but I'm sure they're a bit deeper than a few dozen words of poetry.
Even that false attribution might count for something, but I hope not for much. The justice system ought to be able to look behind the falsity of the movie, and to realize that they picked Lennon's song to lie about because of its recognizability and aesthetic properties. There is no meaningful criticism being made at all, merely false attribution and attempted smear of any sort of secularism.
Lennon's song is by no means essential to any of that, but was needed to spice up their own dull creation. If a judge were to decide that 15 seconds isn't enough to worry about (even though many think even shorter snippets don't fall under fair use), that would be okay. What is not true is that Lennon was any kind of origin of anything they were criticizing in the movie, instead he was chosen precisely because they preferred to use the artistry in his song, which is exactly what is covered by copyright.
Glen Davidson
http://tinyurl.com/2kxyc7
Posted by: Glen Davidson | May 2, 2008 11:03 AM
One word: montage.
If they were actually critiquing it, then they should have had Stein sitting in front of a stereo listening to it, or a static picture of Lennon, with on-screen text showing the lyrics. That is a critique.
Putting the song in as bed music under images, to emotionally enforce an opinion, is a montage, and it's a bonehead maneuver by any real producer to not secure rights for such a thing.
Posted by: Damon B. | May 2, 2008 11:03 AM
DaveX:
While I agree that fair use is interpreted in different ways, the problem is inherent in the nature of the defense. The diversity of works and the diversity of uses makes it impossible to statutorily prescribe one size for all.
Posted by: Sanjiv Sarwate | May 2, 2008 11:18 AM
As someone who works in the copyright permissions field (textbooks), I can say that while it is up to the judge, these people are very likely to have to pony up a LOT of money for this infringement.
It does not fit "Fair Use" which is a fairly loose term meant to cover things like some editorial use and satire, and no matter how short the segment is, they need to clear usage in a commercial product with the copyright holder.
On the bright side, despite tanking at the Box Office, perhaps someone can use their bragging about how many screens it ran on to show just how much it was used - essentially, you have to pay for every person seeing it, so attendance numbers and screens showing it all come into play here.