Wednesday, April 09, 2008

"Expelled" gets a copyright infringement letter

XVIVO LLC has sent a copyright infringement warning letter to Premise Media about the computer animation that appears to have been based on XVIVO's "The Inner Life of a Cell." Some have speculated that "Expelled"'s release was moved from February to April because it had used the XVIVO film directly (just as William Dembski and other Discovery Institute fellows had been doing in public lectures), and they used the time to re-create the animation on their own.

The letter says that XVIVO considers the segment in the film to still be close enough to be an infringement of their intellectual property rights, and demands:
  1. That Premise Media, Rampant Films, and its officers, employees, and agents remove the infringing segment from all copies of the "Expelled" film prior to its scheduled commercial release on or before April 18, 2008;

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

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

It sounds like either "Expelled" will be slightly shorter on April 18, or will be contributing some of the box office gross to XVIVO. Peter Irons, who drafted the copyright letter, says in a comment at Pharyngula that he suspects the cost of making changes to the film before April 18 would exceed $100,000. Andrea Bottaro offers this suggestion in a Pharyngula comment:
I am sure that if the Expelled producers can show the judge all their notes and proof of intermediate production stages with respect to the scientific work that went from the analysis of the existing literature data to the construction of the molecular models, their rendering, and the final animations, the suit will be quickly dismissed. If on the other hand, all they have is a final product that looks just like XVIVO, and nothing to show about how they got there, the most logical conclusion is that their version is just a bad, unauthorized copy. It's pretty straightforward, really: if they have been honest, they have nothing to fear.
But of course they've been thoroughly dishonest from beginning to end. Commenter Michael X points out that they've got a further problem with resemblance to XVIVO's work:
It's actually worse than you think. Not only must they show their work, they have to explain (as PZ stated in the far earlier post on this topic, and ERV pointed out in this thread) the identical mistakes made in both videos. But, even more damning, how they ended up visualizing these mistakes in the exact same way as XVIVO. No amount of homework and fact checking will save you there.
Intentionally inserting mistakes into maps is how map-makers prove copyright infringement, and the same principle applied to DNA demonstrates common ancestry and the truth of evolution. (Also see this previous Lippard Blog post on retroviruses and common ancestry.)

UPDATE (April 11, 2008): William Dembski apparently wants to help XVIVO's case:
I ve gotten to know the producers quite well. As far as I can tell, they made sure to budget for lawsuits. Also, I know for a fact that they have one of the best intellectual property attorneys in the business. I expect that the producers made their video close enough to the Harvard video to get tongues awagging (Headline: Harvard University Seeks Injunction Against Ben Stein and EXPELLED you think that might generate interest in the movie?), but different enough so that they are unexposed.
In other words, they did use the XVIVO film as the source, and theirs is a derived work.

The "Expelled" website misrepresents the XVIVO copyright infringement claim, by pretending that the claim is that they used the actual XVIVO film, rather than copying it to make their own:

Editor’s Note: Questions have been raised about the origination of some of the animation used in our movie EXPELLED: No Intelligence Allowed. Claims that we have used any animation in an unauthorized manner are simply false. Premise Media created the animation that illustrates cellular activity used in our film.

The Producers of “EXPELLED: No Intelligence Allowed”

As Darwin Central notes, if you make your own animation of Mickey Mouse, changing the color of his pants won't be enough to keep you from being sued for copyright infringement by Disney.

UPDATE: David Bolinsky of XVIVO has commented publicly:
XVIVO created The Inner Life of the Cell for Harvard, through fourteen months of painstaking examination of how a myriad of systems, functional structures and proteins in a cell, could be depicted in a sweeping panoramic style of animation, reminiscent of cinema, that fundamentally raised the bar on the visualization of molecular and cellular biology for undergraduate students. In depicting what we did, other than merely maintaining the intent of the syllabus, we needed to edit like mad. A cell has billions of molecules, millions of active functional proteins and tens of thousands of structural elements separating, sequestering and joining compartments and systems into a functional whole. An initial foundational decision process of our creative vision, consisted of editing out 95% of the contents of our cell in order to gain, for our virtual camera, a vista to visualize what elements we left in. The decisions we made blended aesthetics with science. They were not made lightly, nor were they made without extensive consultation with researchers at Harvard, and an extensive body of literature, including protein data libraries and new findings by Harvard researchers.

Given the vast number of structures to be removed, and given the structures remaining "on camera", whose positioning and relationships, both aesthetic and functional, needed to remain true to the function and beauty of molecular biology, it is inconceivable, mathematically, that the animator hired by EXPELLED's producers, independently and randomly came up with the same identical actin filament mesh XVIVO depicted in one scene, which had never before been rendered anywhere in 3D! It is astonishing that among well over a dozen functional kinesins from which an animator might choose, we both chose the same configuration of kinesin, pulling the same protein-studded vesicle, on the same microtubule! Can YOU believe we coincidentally picked the same camera angles and left in the same specific structures in the background, positioned with the same composition? Equally astonishing is the "Intellgent Design" treatment of these and other proteins surfaces, which XVIVO derived using procedural iso-surface skinning of the PDB cloud data of our proteins' atom placement. There are an infinite number of possible "correct" solutions to that problem.

Coincidence? Given their "access to the same literature" we had, where Graham Johnson at Scripps so brilliantly worked out the real motion of kinesins, I am simply blown away that the "Intelligent Design" animators slavishly made the hands of their kenesins move exactly as we did, even though we intentionally left out the stochastic Brownian motion which actually characterizes the tractive force and periodic pedicle placement of these tiny motivators. We simply did not have the time or budget to render these, and a dozen other details, to the level of insanity we would like to have done! This was, after all, an underfunded proof-of-concept piece. The cellular biology that serves as "filler" material, between scenes copied from Inner Life, is riddled with biological errors. Imagine "Intelligent Design's" depiction of protein synthesis without ribosomes!
He addresses Dembski directly, and reveals that Harvard did take copyright infringement action against Dembski:
To Mr. Dembski: The only reason I am involved in this discussion is because I do not want the reputation of my company, hard-earned as it is, to be sullied by even oblique affiliation to your sort of smarmy ethics, if only through works of ours, purloined to fit your agenda. Last year you were charging colleges thousands of dollars to give lectures showing a copy of The Inner Life of the Cell, you claimed you "found somewhere", with Harvard's and XVIVO's credits stripped out and the copyright notice removed (which is in itself a felony) and a creationist voice-over pasted on over our music (yes, I have a recording of your lecture). Harvard slapped you down for that, and yes there is a paper trail. One can only assume that had we not taken notice then, we would be debating The Inner Life of the Cell being used in EXPELLED, instead of a copy. You have enough of a colorful history that Harvard, in its wisdom, decided to 'swat the gnat' with as little fuss as possible. Imagine our surprise earlier this month, to see our work copied in a movie trailer for EXPELLED! And you are in the movie too! Not quite a star, but brown dwarfs are cool. XVIVO has no intention of engaging alone, in asymmetrical fighting against an ideological entity with orders of magnitude more resources than we have. That might make great theater, but would resemble a hugely expensive game of whack-a-ID. Boring!

It makes me happy, though, that you decided to implicate your friends in print, on your blog ([uncommon descent link removed, you can get there from the above link]), in what is legally, malignant infringement, since you no had doubt discussed with EXPELLED's producers, Harvard's previous legal infringement action against you, the Discovery Institute, where you are a fellow and Southwestern Baptist Theological Seminary, where you teach. Once we uncover the EXPELLED animation dollar trail, and bring it to light, we will have even more fun. The sublimely ridiculous claim that EXPELLED uses completely original animation, in light of copying our work so closely that a budget was reserved to pay for an infringement suit by Harvard, is delicious! Why should I try to take you guys down when you are doing such a splendid job yourselves? For free! So go ahead and release your movie. Just keep track of how many tickets you sell. We may just find that data valuable, too.

UPDATE (April 12, 2008): Blake Stacey has a nice post summarizing the copyright infringement issue.

UPDATE (April 19, 2008): "Expelled" apparently removed the footage copied from XVIVO prior to the film's public release yesterday.

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