…and this is a 
Yoko loses
Category: Creationism
Posted on: June 2, 2008 6:52 PM, by PZ Myers
I had mixed feelings about Yoko Ono's lawsuit against Expelled — fair use is a desirable goal, but I don't think Premise Media was exercising fair use, since their movie wasn't about Lennon's music or ideas — so I can't say that I'm at all surprised or upset that the lawsuit is likely to go down in flames. I'm also not appreciative of the fact that Lessig thinks this is a "great success"; it is at best a mixed result, because while it may support Lessig's principled defense of fair use, it is also a case where he's supporting people who are promoting lies and ignorance.
It really doesn't matter much now, though. The propaganda movie is a dead issue, a complete flop, and it is not going to come back from the dead after a court decision that had no effect on its declining popularity is reversed.
Comments
That they are promoting lies and ignorance doesn't affect the issue of fair use. That being said, the Expelled folks obviously made a detailed description of how this was some huge commentary on Imagine after-the-fact, like they had to invent it. They were trying to comment on your statements, yet, if you read the court statements is sounds as if Imagine was the real topic of discussion. They could have written just as lengthy of a 'commentary' explanation for the stock footage of that table-pounding guy near the beginning, you all know who I mean.
I was worried that the Fair Use doctrine might get restricted by such a lawsuit, especially since responses to Expelled, when it comes out on DVD, will be relying on Fair Use to comment on and respond to its lies. I for one would like to see fair use be expanded, because it limits the amount of creative expression that the general public can exercise in commentary, criticism, and such.
So far, contrary to what Chris Mooney and others have said about Expelled, it does not seem to have been a success. It fell below their own expectations, and was intended to be part of this big crescendo culminating in passing those anti-evolution Orwellian-termed bills. So far, not a single one of those bills has bees passed, many being rejected or tabled. Using that as a rubric, Expelled is indeed failing.
The Yoko Ono thing just adds to the atmosphere of deceit surrounding Expelled.
Posted by: Inoculated Mind | June 2, 2008 7:04 PM
I guess it's time to rip off a "Christian rock" number for The End of Biblical Studies: The Movie.
Posted by: Blake Stacey | June 2, 2008 7:06 PM
No need to flog a dead ass, indeed.
It's at least nice that they'll have no excuse for a movie that loses money, as well as any lingering respect the IDiots might have had.
And believe me, I think this movie is the fitting end of at least the first incarnation of ID. It began with a whine, a duplicitous Wedge Document, and no science, and it goes out with a whine, duplicitous movie, and no science.
Glen Davidson
http://tinyurl.com/2kxyc7
Posted by: Glen Davidson | June 2, 2008 7:07 PM
hat tip to Glen for relaying the info about the lawsuit conclusion to begin with in the other thread.
Posted by: Ichthyic | June 2, 2008 7:19 PM
Expelled is a thoroughly despicable movie.
However I believe it's critical that they be allowed to use the clip of Imagine, not just for fair use but the more basic issue of free speech. Free speech isn't for ideas you agree with, it's for ideas you vehemently disagree with.
Posted by: Aaron Luchko | June 2, 2008 7:21 PM
Wow it turned out to be a flop!! Who wod-a thunk it!?
But then one can hope the anticipated blockbuster "Robbed" by HRC Productions will fair better. I mean like won't the truthiness of such films like "Expelled" and "Robbed" eventual win out over the evil forces of rationality and fact?!? Well won't it!?
Uneducated, hard working white men unite, our day is a-near and Judgement Day - it's a comin!
Posted by: ConcernedJoe | June 2, 2008 7:21 PM
It'd would've been nice to see the producers deterred further from making Expelled 2(THIS TIME IT'S BIBLICAL)...oh well I guess the losses they made on the film will have to be enough(They did make a loss.. didn't they?)
Posted by: DeadRedZebra | June 2, 2008 7:24 PM
I think it was a definite loss, but they could always write it off in their tax returns. Wait, don't they think taxes are inherently evil? Isn't that usury? Oh, never mind. We're talking about people who only read the Bible selectively, and most of the time don't read it at all but just use it as a club.
Posted by: Christopher Waldrop | June 2, 2008 7:36 PM
What about the footage they ripped off about the inner workings of the cell? Was that every solved to any sort of satisfaction (as in the Expelled people admitting they blatantly ripped off the intellectual property of a scientific institution and being properly admonished)? Maybe I completely missed it, but I don't remember every reading about any sort of resolution.
Posted by: Mozglubov | June 2, 2008 7:37 PM
What about the footage they ripped off about the inner workings of the cell? Was that ever solved to any sort of satisfaction (as in the Expelled people admitting they blatantly ripped off the intellectual property of a scientific institution and being properly admonished)? Maybe I completely missed it, but I don't remember every reading about any sort of resolution.
Posted by: Mozglubov | June 2, 2008 7:38 PM
Oh dear, I failed at the internet. I'm sorry for the double post... I thought I had hit stop fast enough to correct my everyever mistake. Instead I just posted twice and compounded my failure of language with failure of computer use...
Posted by: Mozglubov | June 2, 2008 7:43 PM
The movie will be back.. DVD sales and rentals will guarantee that, especially since it will be a cheap and easy way to show the film to church groups and churches and yes, perhaps schools.
Posted by: BMcp | June 2, 2008 7:43 PM
It may be a flop, but it was probably quite quite popular among religious nut circles. Many of these people will probably buy the DVD and use it as a propaganda tool within the community. The response by atheists and scientists have been commendable, but we're dealing with people who have minimal or zero trust for either or these groups.
Posted by: ron brown | June 2, 2008 7:45 PM
Disgusting. I'll have to read the ruling, because there was only the faintest sliver of post hoc fair use involved. -- OK, read it, and I simply disagree with the judge's ruling.
I think it could easily swing the other direction if it goes to discovery. As of now, only the injunction was denied, which does include a standard of 'who is likely to win the case?' It looks bad for the originating artist, and suggests that anybody can use any song ever for free, if there is a ghost of parody.
Bombs over Baghdad, originally meant as an outcry against the second Iraq war, is now fair game for any movie set in Iraq for its transformative and parodic (right word?) nature.
I also found the comments of the lawyers to be highly unprofessional. I am not impressed by Stanford's law faculty, an opinion that I would hold regardless of which side I was supporting.
Posted by: Robster, FCD | June 2, 2008 7:47 PM
My local hole in the wall theater had the poster up for a bit, I never went ahead and tried to watch it.
I did go in after they stopped playing it and asked if I could buy the poster. The girl laughed and said "Your the third person to ask that, and nobody watched that damn thing"
I guess it was a flop.
Posted by: T.D.E. | June 2, 2008 7:55 PM
[I posted this in another comment section elsewhere, but it's still relevant here]
So if I were to make a complete copy of Expelled, chop it into thirty-second segments with a brief comment preceding each one, and post the entire collection onto YouTube so people wouldn't have to pay for the DVD or get entangled in torrents, that would be protected under Fair Use?
I don't see how Ben could possibly complain...
Posted by: Duncan | June 2, 2008 7:59 PM
I admit to being completely ignorant in law, but doesn't this ruling make the June 6 opening of this movie in Canada more likely? And as others have (beaten me when they) pointed out, it allows Premise Media to market the DVDs, which they'll be sure to flog as much as possible.
It seems like a slim chance now, but I'm still hoping that they'll find the movie to be violating fair use practices. If copying a CD to your MP3 player can be seen by some judges as unfair use, this definitely should.
Posted by: HidariMak | June 2, 2008 7:59 PM
I've taken a few film classes before, including documentary classes, and one of the first things they stress is that, if you're going to use copyrighted music, you get a release. Even if it falls under Fair Use, it's just common courtesy. Stein and crew show a complete lack of basic film industry methods and ethics, but that's no surprise.
Posted by: mgrant | June 2, 2008 8:10 PM
I read the Judge's findings this morning, & while I had hoped that he would have found for the plaintiffs, I can see the basis for his decision.
I personally think that intellectual property rights, as well as patent rights have gotten out of hand. It wasn't very long ago that Johns Hopkins was suing to put broccoli sprout growers out of business, claiming that they held the patent on growing Brassica broccoli sprouts.
As well as research institutions claiming patent rights on genes? What's next? One can only Imagine!
Posted by: Benjamin Franklin | June 2, 2008 8:18 PM
"It seems like a slim chance now, but I'm still hoping that they'll find the movie to be violating fair use practices. If copying a CD to your MP3 player can be seen by some judges as unfair use, this definitely should."
I would say that "if they are legally untitled to squelch consumer freedom, they should be able to do X" is a rather bad standard to judge by. It only legitimizes copyright maximalism.
As far as the ruling goes, I will reluctantly favor it. If the Expelled folks are claiming something to the effect "PZ is advocating something similar to John Lennon's Imagine, while the thinking in John Lennon's Imagine leads to things like the Stalinist autocracy, therefore PZ is liable to usher in a new era of totalitarianism," what they are making is a very bad argument. But I don't know how one could make the quality of an argument a criterion of fair-use without a certain level of arbitrariness and subjectivity that I would find rather disturbing as a legal precedent. The Expelled folks are deceitful shitbags, but the ruling here applies universally. In the spirit of Thomas Moore we should give the devil the benefit of the law for the sake of our own safety.
Posted by: Tyler DiPietro | June 2, 2008 8:38 PM
You know, I don't think Expelled was a hit with its target audience. My large family in East Texas didn't go see it; I didn't even hear any of them mention it. It was on in Little East Texas Hometown. I checked.
Posted by: Leigh | June 2, 2008 8:49 PM
To preempt the grammar-nazis, I know I should commit writing suppuku for ending a sentence with a preposition.
Posted by: Tyler DiPietro | June 2, 2008 8:50 PM
I am not surprised and I do not think Yoko is, either. However, she had to do it to preserve the estate rights.
Yes, the flop in theaters is not the end of the problem. The DVD is the vehicle they can use to get to plenty of people who sat it out on round one. The good side of "fair use" is that when the DVD does come out, YouTube can be saturated with clips that show these guys are just pushing lies.
Posted by: Quine | June 2, 2008 9:01 PM
If anybody wants to read it, I linked to the opinion here -
http://acandidworld.wordpress.com/2008/06/02/stein-says-stein-wins-win-some-you-lose-some/
Posted by: Ames | June 2, 2008 9:18 PM
This decision, though not final, has the advantage of not squeezing ever harder on those who take a chance on using copyrighted material without specific license when the usage could be reasonably judged (under definitions already laid out) to not infringe unduly on the copyright holders.
If you think that this decision unfairly favors the creationists, just remember that such favoritism falls on the just and the unjust equally. hmm . . . didn't I read something like that somewhere? In an old book I found . . .
Posted by: Crudely Wrott | June 2, 2008 10:33 PM
Just as a side note, according to the court's decision, the producers claim to have made approximately $7,250,000 so far with a run in Canada coming up and then moving into DVD sales. Does anyone have any info on how much they've spent so far in producing it, distribution and marketing?
Posted by: John Pieret | June 2, 2008 10:40 PM
This is definitely a positive result, IMHO. The IDiots have a fantasy about being downtrodden. The worst thing you could do is play into that fantasy.
Posted by: Benjamin L Harville | June 2, 2008 10:46 PM
As far as I know, the producers have said in various articles and interviews that production costs were approx. $3.5 million.
I recall one interview with Logan Craft where he said that marketing was a multiple of the production costs.
So, my best estimate is that total cost for the film was between $5 & $10 million, but probably closer to $10 million.
The producers were anticipating box office on opening weekend to be $12-$15 million, & it fell far short of that.
Bottom line, I would say that at this point the film has lost money, but it may eventually break even, or even make a profit with DVD sales.
Posted by: Benjamin Franklin | June 2, 2008 10:49 PM
Thanks, Ames, for posting the decision on your blog.
I don't like Expelled, but I like this decision. The part about transformative use starting on page 15 is especially valuable.
It seems to mean a lot of atheist videos that use clips in a similarly transformative---mocking---way are not in violation of copyright. That's seems right, and is very cool. It lowers the barriers to distributing criticism of the sort we like.
Posted by: Paul W. | June 2, 2008 10:53 PM
Damn. So far Expelled had been completely off the radar for the Australian press, but today the website for The Age picked up the 'Yoko looses' story off the AP wire.
The only mention the movie gets is a description where "It presents a sympathetic view of intelligent design, the theory that the universe is too complex to be explained by evolution alone."
Hopefully thats the last of it down here.
Posted by: Charlie Foxtrot | June 2, 2008 11:59 PM
PZ, I'm rather surprised at you. Lawrence Lessig is standing up for our rights, and doing so by defending an unpopular defendant, just as the ACLU has done time and time again.
If we are going to have the rule of law, then the law must apply equally to good people and assholes.
-jcr
Posted by: John C. Randolph | June 3, 2008 12:05 AM
I admit to being completely ignorant in law, but doesn't this ruling make the June 6 opening of this movie in Canada more likely?
Canada has somewhat different copyright laws. Yoko can try to invoke moral rights here.
Posted by: Graculus | June 3, 2008 12:47 AM
I for one am not surprised -- for a number of reasons.
1) This was legal usage. (Imagine -no pun intended- that you PZ wanted to use a short clip from the song "Yellow Submarine" to illustrate a squid that happens to be mostly yellow. You are free to do so under copyright laws.)
2) "Imagine" is integral to what Stein is whining about.
3) If not for this ability to use short quotes, where would you be when quoting from works in scientific papers?
The list goes on. But my original was that this would go nowhere, because they did the legal thing.
That isn't to say that I'm not offended by the usage of the song. I am very offended. But being offended by something doesn't make it illegal. Or at least lets hope it isn't (e.g., I am offended by your perfume, your eating hamburgers, vegetable, etc.).
Sad to say Stein and company are right, and we ought to back him on this or our way of life is over.
Posted by: mikey.duhhh | June 3, 2008 12:48 AM
"The film is an attack on the culture that forbids "intelligent design" from being considered seriously. "
Who the hell is forbidding it ? Their problem is that when it is considered seriously it turns out to be nonsense.
Posted by: Sigmund | June 3, 2008 12:54 AM
Neither I nor PZ, I'd wager, will argue with you, JCR. It doesn't mean I have to be happy for the assholes when they secure even a pyrrhic victory. I'll smile, as a Negativland fan, but I'm glad Yoko made it hurt as painfully as she has so far.
Posted by: Ken Cope | June 3, 2008 12:56 AM
"It presents a sympathetic view of intelligent design, the theory that the universe is too complex to be explained by evolution alone."
this indeed is the standard snippet utilized by the AP to describe the movie; I've seen it dozens of times now.
However, it's a rather poor description, actually, since in reality the film talks about the support for intelligent design very little (which isn't surprising, given that if they did, even the morons that are the target audience might start asking questions).
It really should be described as this:
"A poorly done hit-piece attempting to equate science with Nazism, disguised as a documentary on anti-science issues."
Posted by: Ichthyic | June 3, 2008 1:38 AM
[ Cross posted from Pandas Thumb ]
Does anyone else see the irony and the common thread here? :-)
Posted by: Scott | June 3, 2008 2:06 AM
I had mixed feelings about Yoko Ono's lawsuit against Expelled -- fair use is a desirable goal, but I don't think Premise Media was exercising fair use, since their movie wasn't about Lennon's music or ideas -- so I can't say that I'm at all surprised or upset that the lawsuit is likely to go down in flames...PZ Meyers
Ok, let me get this straight, PZ in your quote you say, but I don't think Media was exercising fair use, since their movie wasn't about Lennon's music or ideas. It was about what the lyrics which were painting an idea of a particular type of world.
Imagine there's no Heaven
It's easy if you try
No hell below us
Above us only sky
Imagine all the people
Living for today
The theme of the song is describing atheistic principles. Of course, atheists are more dogmatic about it, but the lyrics do in fact go along with what "Expelled" was trying to point out. It's fair use. Since PZ didn't like the movie so he couldn't fully give a complete not guilty verdict, he had to blame the producers about some motive...lol...If I was the producer of that film, I wouldn't have used that song at all regardless of fair use which would allow me to do so.
Posted by: Michael | June 3, 2008 2:07 AM
Of course, atheists are more dogmatic about it,
since there is no atheist dogma, that statement makes no sense.
The theme of the song is describing atheistic principles.
no, it isn't.
but the lyrics do in fact go along with what "Expelled" was trying to point out.
that Darwin is Hitler?
funny, but I don't think you listened to the whole song, or at best are horribly misinterpreting its message.
but then, that wouldn't be unique for you, or xians in general.
Posted by: Ichthyic | June 3, 2008 2:33 AM
For me the annoying point is not that Lessig has taken up their case, its that he has seemingly completely bought into their side of the story. There are, of course, very good libertarian principles behind the advocacy and protection of free speech - most of us probably understand that even worst case scenarios such as the KKK or neo-nazi holocaust deniers should also be allowed to make their points in the public arena, however does Lessig really have to use their own descriptions for themselves?
An analogy would be a holocaust denial group using the theme song from Schindlers list in their movie about "the truth that no Jews died in WW2" and Lessig describing it as such, without comment. Expelled is a similar worst case scenario involving a similar group of malicious, lying, conniving reality defying deniers and that point should be made when describing the case.
Who the hell amongst the scientific community 'forbids' serious consideration of ID? Bring us some evidence and we'll consider it - the same as absolutely anything else in science.
I wonder if the Expelled crowd will have a road to Damascus like conversion away from the idea of allowing fair use of clips from their movie once it is available as a DVD rip (and isn't it strange that Lessig failed to mention the Expelled crew's recent threats of $250,000 fines for anyone caught taping their film).
Posted by: Sigmund | June 3, 2008 3:04 AM
Knee-jerk reaction from a lurker musician... to expand on what Ichthyic just said in #39, it also seems like the usual cherry picking routine. I mean, they certainly didn't use the portions of the song that include:
"Imagine all the people
Living life in peace..."
or
"Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people
Sharing all the world..."
(kind of similar to what Jesus was preaching? Also an ideal of many religions and I know a lot of atheists who would love to see an end to hunger and war).
I find it a bit unsettling to see a songwriter's image of a peaceful world twisted (through visuals) to represent Fascism, racism and genocide in a setting that isn't even supposed to be debating that particular issue.
So, in this case, could you say that the associations made in the movie to the song were somewhat libelious ? is this hate speech? defamation?
I guess in the end I find the correlations made by the filmmakers just downright creepy.
Posted by: mezzobuff | June 3, 2008 3:18 AM
Don't worry, Tyler. That "don't end a sentence with a preposition" nonsense isn't really a rule of English grammar. It was borrowed from Latin grammar by some pedantic poser. But don't let us catch you dangling your modifiers!
Posted by: Grammar Nazi | June 3, 2008 3:34 AM
Delurking. OT - sorry. Can anyone point me to a good book on the Sumer origins of the Hebrew myths? Something that investigates the origin of the names for the Hebrew god like Yah/Yahwe would be a plus. A good website would also help since I lost my old bookmarks.
Thanks in advance.
PS: My previous comment got moderated, sorry if it becomes a double post.
Posted by: Renier | June 3, 2008 4:03 AM
I'd say this is a victory for us. We need Fair Use to criticize the anti-science contingent. A strong Fair Use allows us to legally quote from their materials to argue a case. Weak Fair Use allows people to sue their critics into oblivion.
Common courtesy isn't always reciprocated. Asking will not necessarily get you permission or a rate that is remotely reasonable, especially if you are making a documentary critical of the subject matter you seek to quote. I've seen rights holders (well, actually, alleged rights holders) demand $3,000 a second for 50's talk show footage to be used in a limited release DVD-Only documentary. Granted, lack of affordability is not a factor in a Fair Use claim, but if one has a Fair Use justification then a very high price demanded for licensing can justify the legal risk of acting on the Fair Use claim rather than paying a licensing fee merely to avoid litigation, even litigation one is likely to win.
Fair Use is an amorphous and limited right. The reason to use it sparingly if at all is legal uncertainty rather than courtesy. And for films to be broadcast it is near impossible to get Errors and Omissions insurance needed for broadcast on a major network on the basis of fair use. That being said, Fair Use may well turn out to be a common and critical component of documentaries in the future and the fact it hasn't been used more in the past is not proof that it won't be important in the future.
Posted by: scote | June 3, 2008 4:10 AM
But it is. Their assertion is exactly that PZ's and Lennon's kind of thinking tends to lead to things like Communist oppression and the Holocaust. It's bullshit, but it's not off-point. It is their point.
No. Some of us made the same kind of point---correctly---about Christian ideas leading to that sort of thing. (E.g., stuff in the Bible and Luther's 7 point plan for the Jews.) Saying that ideas can have disastrous consequences is not hate speech. Making fun of people who believe dangerous ideas is not libel.
They're not saying P.Z. or Lennon is a Communist or a mass murderer; they're saying that the ideas they espouse may lead to that sort of thing, eventually, when things go too far and get out of hand. They're not defaming anybody in particular.
You're certainly right about that. But the problem is that they think Darwin did what Bible authors and Luther actually did do, and they put the blame on the wrong people and ideas.
That sort of speech needs to be protected, because any law that would ban it would also prevent people from correctly criticizing ideas that are truly dangerous.
Hector Avalos would be in deep trouble, for example, for libeling Christians and Jews and Muslims by talking about the violence caused by religion.
We have to let these guys have their stupid say, and counter it with the truth.
Posted by: Paul W. | June 3, 2008 4:17 AM
PZ@OP: You're "not appreciative" of Larry Lessig welcoming a ruling supporting a strong interpretation of Fair Use? Obviously you disagree with him but Fair Use is his thing; you must have known which way he'd go. It's like anouncing that you are not appreciative of Ann Coulter expressing support for laws against gay marriage. In any case if Lessig didn't keep up his support for a wide-ranging Fair Use he would rightly be accused of hypocrisy (he explicitly supported YouTube mash-ups with much more tenuous seeming claims). Then your country's smartest left-leaning future high-court judge is suddenly a partisan hack.
IANAL but for what it's worth #45 seems to have it right; they are using the clip to make a (fucktarded) point and the law shouldn't rule on what is fucktarded.
Posted by: Matt Heath | June 3, 2008 5:01 AM
Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter
Posted by: pompousbore | June 3, 2008 5:52 AM
Yoko Ono vs. Expelled. One of the epic fights of evil against evil.
Posted by: johannes | June 3, 2008 5:52 AM
Well, even if evolution was wrong and could be proven to be wrong, do you think that the evidence would be allowed to get out?
I don't think ID is science. I am saying that I seriously doubt the agenda on some people and what they push.
Sometimes I think there are politics to these things. Whenever you have humans you have politics and I just think that sometimes agendas and politics are being pushed rather than real facts and evidence and yes I know about the scientific method and all that but some things are not either tested in that method or the results skewed.
This is an opinion and not a fact people okay? Yes, I have to state the obvious because some on here are too ignorant to READ.
Posted by: Kenny | June 3, 2008 7:20 AM
Well, even if evolution was wrong and could be proven to be wrong, do you think that the evidence would be allowed to get out?
Please just shut the fuck up until you understand how scientific research, writing, and publishing work. All you've done is demonstrate that you are an ignorant git.
JUST. SHUT. THE. FUCK. UP.
YOU HAVE NOTHING OF VALUE TO SAY.
Posted by: MAJeff, OM | June 3, 2008 7:23 AM
While I believe the makers of Expelled should have the same freedoms as we do, even if we don't agree with them, I'm still not convinced that this was a case of fair use, I hope some of the people at Lessig's blog will be able to help me out with my questions.
I read the ruling and I got the impression that the judge wasn't quite as critical towards the movie makers as she could have been. For instance, she wrote that PZ wasn't exactly pointing out anything new with regard to religion, without noting that Expelled didn't really have any new arguments either. Did anyone else have this impression as well, or am I just reading things into the ruling just because I don't like Expelled?
Posted by: Beowulff | June 3, 2008 7:30 AM
While I am glad to see Fair Use (marginally) strengthened, I find contentions that the atheist lyrics in "Imagine" go to the very heart of the movie a bit off. The most charitable way of putting it would be that the producers added narration to span the gap and get them to Lennon's song. How much of that was fair commentary and how much was added simply to be able to play the song without paying is a judgment call, which is what courts do; I could easily have seen this going either way.
From what we know of the movie (I guess we'll have to wait for the DVD to be sure), the directors and Ben Stein take a sharp turn after PZ's "religion as a harmless little side-dish hobby" comment to say something to the effect of "PZ Myers would like you to think he's being original, but he's just expressing an idea John Lennon put to song..." (cue the music; note that the clips they play of PZ in no way imply the first half of that narrated sentence). The way the documentary is cut, we're supposed to believe that PZ started deprecating religion spontaneously at the end of a conversation about evolution.
Let's take the filmmakers at their word for a moment, and ignore the false pretenses under which they interviewed PZ. Does this mean that I can be interview some kid about local skater culture and if he makes a side comment of "that chick just hooks up with guys for one night and moves on", I then get full license to narrate "this behavior is not new with today's skater culture", and launch into Ace of Base's song "All That She Wants"? That seems a bit extreme. I suppose the deciding factor there would be how much of the song was used; I guess I could see in that case that using one sentence from the chorus might be okay.
Which brings us back to needing the actual video to see how much of the song was used.
Posted by: Daniel Martin | June 3, 2008 7:38 AM
My understanding of the ruling, and this was mentioned in the comments over at Pandas, is that the ruling was on the injunction preventing Expelled from being shown and distributed until the litigation proper is settled. It is not over yet, gang.
Can any of the legal beagles here confirm that this is, in fact, the case?
Posted by: BobbyEarle | June 3, 2008 8:06 AM
but I don't think Premise Media was exercising fair use, since their movie wasn't about Lennon's music or ideas
IAAL, and it's almost as distressing to read comments that are clueless about the law as it is to read Disco Institute writings that are clueless about science.
PZ, the fact that the movie "wasn't about Lennon's music or ideas" is a point in favor of fair use, OK? Fair use in U.S. law is all about whether you've encroached on the holder's commercial use rights, or to put it another way - Has the movie cornered an appreciable part of the market for Lennon's music and ideas, to the exclusion of the copyright holder? Pretty obviously not, right? "Oh yeah, I was gonna buy Lennon's collected videos on DVD, but now that I heard 15 seconds of 'Imagine' backing film of Stalin, that satisfies my hankerings."
"Fair use" has got nothing to do with a "fair" presentation of the copyright holder's ideas. In fact, satire, mockery or other negative commentary on the holder's ideas is usually considered a factor weighing in favor of fair use.
Posted by: Jud | June 3, 2008 8:18 AM
Frankly, I'm surprised. The music was being used as commentary, not being commented on.
Posted by: Monado | June 3, 2008 8:34 AM
Tyler [26], there's nothing wrong with ending a sentence with a preposition as long as you're using it properly. English is not Latin. That's just one of "Miss Thistlebottom's hobgoblins," as Theodore M. Bernstein put it, one of the rules you give to primary school pupils to get them started. Or, as Winston Churchill said, "That is the kind of errant nonsense up with which I will not put."
Posted by: Monado | June 3, 2008 8:41 AM
Adding my voice to the chorus celebrating a victory for Fair Use. Look, it could've been an atheist group getting sued for sampling 15 seconds of Christian rock/rap in *their* movie. I despise the whole message of EXPELLED, but we have to set aside narrow partisan interests for the greater good of the rule of law. This ruling is a victory for freedom of expression for ALL of us.
Posted by: JJR | June 3, 2008 8:47 AM
Thank you, Jud [54], I sit corrected.
Posted by: Monado | June 3, 2008 8:54 AM
And? Seriously, what is it with all the comments which assume that any opposition to this ruling must be ideological?
Posted by: MartinM | June 3, 2008 9:05 AM
All things considered, this movie was far from a commercial flop. According to the suprisingly accurate wikipedia, it had a budget of 3.5 million, grossed about 7 million, and it opened in a record number of theaters for a documentary. As has been said, given what their marketing, and don't forget paying people to see the movie, costs, they've probably lost money at this point, but DVD sales, could pull them out of the hole. But no, it was not a total flop. That's just wishful thinking on the part of some of the people on this blog.
That said, I don't think the movie its self had redeaming qualities. I'm trusting the general consensus of the reviews on that one.
Brian
Posted by: Brian | June 3, 2008 9:11 AM
Monado, of course, as soon as you start talking about grammar, you make a mistake of your own. It's a law of the internets. You meant "arrant", not "errant". (I wonder what error I've made, that will beccome obvious as soon as I've hit the post button?)
Posted by: Cath the Canberra Cook | June 3, 2008 9:21 AM
"And in a rare double-whammy decision, polygamy has been declared constitutional."
Posted by: s1mplex | June 3, 2008 9:44 AM
Brain,
I think most people here recognize that in commercial terms, once the Canadian release and DVD sales are factored in, _Expelled_ is likely to make a small profit. By that standard, it is not a flop. However, the movie did not have the cultural effects that its makers wanted it to, and I believe expected it to. It seems to have been mostly ignored on the culture wars front, and if anything, has strengthened the message that the fundamentalist side is dishonest. From that perspective, this movie is most certainly a flop. And it is from that perspective that most commenters here view the film.
As far as the court ruling, I would caution all that this was a ruling on the preliminary injunction, not the merits of the case. While the Judge did make a comment that he felt that the _Expelled_ would prevail, that is based off of the limited arguments presented to date. There will likely be more evidence presented (And more opportunities for the _Expelled_ crew to demonstrate their dishonesty) before the case's merits are decided.
Posted by: Dave | June 3, 2008 9:46 AM
Brian (#60)
I don't have all the numbers on hand, but from what I can remember, the $7M is how much the theaters grossed - Premise only gets a fraction of that. Also, the $3.5M only covers the production. They spent much more on advertisement. Although we don't have the exact figures, when asked, they admitted it was a multiple of the production costs. This puts advertisement at at least $7M on top of the $3.5M production, leaving them quite firmly in the red.
Posted by: mds | June 3, 2008 9:46 AM
The producers receive about 50% of the gross, so the theatrical presentation perhaps recovered their basic production costs. They've said that their marketing was "some multiple" of that cost, so to this point, as a conservative estimate, the producers are still out some $7-10 million. Explain to me how a film that loses $7-10 million is not a flop.
Using the lyrics to comment on would be fair use. I think it is arguable as to whether the use of this particular recording of those lyrics, or any recording of the lyrics, would be fair use. Expelled was not commenting on the music arrangement, or the melody, or the vocals, but on the lyrics.
Posted by: Tulse | June 3, 2008 9:47 AM
Canadia release could still be blocked by either Yoko or the animation issues.
We have slightly different copyright laws here, and our lawyers are cheaper.
Posted by: Graculus | June 3, 2008 9:52 AM
I've still never seen Expelled. I don't even know if it was released in the UK, most people over here have never heard of it. (Then again, we don't really have a significant pro-intelligent design or creationist movement.)
Posted by: Walton | June 3, 2008 9:57 AM
On his blog Lawrence Lessig says he supports creationism, aka "Intelligent Design".
Fair use rights or no fair use rights, that's one less blog to read. Goodbye, Professor Lessig.
Posted by: Paulo | June 3, 2008 10:00 AM
Where? Looks to me like he says precisely the opposite.
Posted by: MartinM | June 3, 2008 10:11 AM
It looks like my oposition is making my case for me. This movie, once all the numbers are in, will probably make a bit of money. Also, usually production costs are half of a movie's total costs, with adverstising and marketing being the other half, making the total costs 7 million or so. Got a source for the marketing budgeting being 10-12 million other than one person's memory?
Also, I think just getting the film to open on a large number of screens was a moderate victory for them. Sure, they failed misserably at getting the general populance to buy into their crap, and they didn't have to. Just a propaganda piece to shore up their base to prepare the anti-science crowd for the next round...that's a bit of a victory in and of its self.
They'll probably make a small profit and motivate their base which can cause a lot of trouble for science, I think this movie was a minor success for its propenents.
Posted by: Brian | June 3, 2008 10:13 AM
Keep drinking the kool-aid Brian.
Posted by: Steve_C | June 3, 2008 10:23 AM
Paulo, Lessig says no such thing. Indeed he says "The film is an attack on the culture that forbids "intelligent design" from being considered seriously. (I'm a member of that culture.)" That seems to be a humorous way of saying that he doesn't like ID. What made you think otherwise?
Posted by: Joshua Zelinsky | June 3, 2008 10:26 AM
Well, even if evolution was wrong and could be proven to be wrong, do you think that the evidence would be allowed to get out?
First, that would make a great story and will get out to the media quite fast, i would assume the researchers will take their time though since they would have to get a lot of expertise to make sure they aren't missing something.
Second, researchers are going to have to explain why the modern evolutionary synthesis worked so well even though it was wrong. In that sense, evolutionary theory might turn out to be wrong like Newtons description of gravity was wrong. Only in very specific and exotic cases and good enough to land men on the moon.
Posted by: Dutch Delight | June 3, 2008 10:29 AM
Steve:
When did I say I was and ID propenent? I'm not. Reread my first post.
The political reality is that the ID side doesn't have to present good ideas, let alone science, to cause a major headache for school boards around the country. It can take years to get decent science back in a school district. This sop to their base will motivate them to be back for the next round, and they'll be a next round.
Posted by: Brian | June 3, 2008 10:35 AM
Renier @ #43: Can anyone point me to a good book on the Sumer origins of the Hebrew myths?
These may be of help.
* The Old Testament in the Light of the Ancient Near East, vol 1 - Alfred Jeremias
* Hebrew Myths - Robert Graves & Raphael Patai
* Folklore in the Old Testament - J. G. Frazer
* Myth, Legend, and Custom in the Old Testament - Theodor Gaster
Cheers
Posted by: silkworm | June 3, 2008 10:52 AM
By what math? You think they will sudden pull in twice what they have already made at the box office?
How about the chairman of the production company: "Nearly $4 million was spent on producing the movie and 'a multiple of that in distribution and marketing so far, Mr. Craft says."
And note that no one said the marketing budget was "10-12 million", but that it was some multiple of the production cost, so a minimum of $8 million, for $12 million in costs total, at minimum. With 50% of the box office receipts, that makes about $4 million in revenue, which means they are still out somewhere around $8 million, at a reasonably conservative estimate.
All it shows is that the producers were willing to throw money at the project.
If you think spending (at least) $12 million to preach to the choir is a "victory", you have a very odd definition of that word.
Posted by: Tulse | June 3, 2008 10:58 AM
Jud@54
Nicely said.
I've been rather surprised that some people here and at The Panda's Thumb don't seem to understand what fair use is about.
As you point out, it's got nothing to do with whether you're being "fair to" the content of what you're using.
It is also not about inalienable property rights. The constitutional justification for intellectual property is to promote trade, etc., for the general good. If enforcing property rights benefits the public, e.g., by encouraging artists to create and distribute stuff, that's good. If it is bad for the public, e.g., by stifling criticism or the creation of new art from old stuff, that's bad.
Even if using an item does harm the creators' interests somewhat, that's okay if the benefit to the public is greater. Intellectual property is expressly a limited monopoly in the public interest.
Allowing fair use for free is one of the prices artists pay for having their work protected from simple commercial ripoffs. They get some protection, so that they have a reasonable shot at making money, and beyond that, we get the goods to do with as we please.
Ono was wrong when she said she was deprived of her basic right to "say no." There is no such basic right in U.S. intellectual property law. (For example, patent holders can't arbitrarily decide not to license patents to people they don't like, or for purposes they don't approve of.)
Another common misunderstanding is that for something to be "criticism," it has to be very explicit and very focused, with a single target. People seem to think that it's a matter of whether Expelled was criticizing P.Z. or Lennon, and it can't be both.
They can criticize anybody and everybody they want with their movie.
Imagine an article by an evolutionist pundit, criticizing creationists of all stripes for various kinds of stupidity. The article might quote them all extensively and verbatim, criticize them for a variety of different errors, etc. The quotes would still be fair use, even if the particular idea and/or person being criticized changes from one sentence to the next. The only unifying theme might be "our oppponents are a diverse bunch of kooks who don't actually agree on anything," and it would still be fair use.
Our evilutionist pundit might make a backhand slap at one creationist while criticizing another, e.g., calling something a Gish Gallop or saying "that reminds me of Ken Ham, who thinks the Flintstones was a documentary." Juxtaposing quotes from both to criticize both would be fair use.
It is also fair use, in prose, to quote verbatim even if that is not strictly necessary to get the basic criticism across. You don't have to paraphrase the ideas and criticize only "the ideas." You can spew their words verbatim, to criticize their raving tone, their goofy alliteration, etc. And you don't have to justify it, or make it explicit---you don't have to say "he