"Expelled" uses sample from "Imagine" without permission

The copyright infringment continues--it seems that "Expelled" makes use of about 25 seconds of John Lennon's song "Imagine," but permission was neither sought nor granted for its use:

In a written statement, the film's three producers -- Walt Ruloff, John Sullivan and Logan Craft -- acknowledged that they did not seek permission, but they called the use "momentary." "After seeking the opinion of legal counsel it was seen as a First Amendment issue and protected under the fair use doctrine of free speech," the statement said. A spokeswoman said under 25 seconds of the song are used in the movie.

Now this is actually an instance where I agree with "Expelled"'s producers--this should fall within fair use guidelines. The courts, however, have already ruled otherwise. (UPDATE: Not quite accurate, see correction below.) In 2005, the 6th Circuit Court of Appeals ruled in Bridgeport Music, Inc. v. Dimension Films that even a 1.5-second sample requires a license. I'd be happy to see a lawsuit on this issue result in that ruling being overturned.

I've previously written about the danger of such erosion of fair use to the creation of new music in one of this blog's more popular posts. The link at the end of that post about "Amen Brother" is well worth your time.

(Also related is this film in which fair-use samples from Disney films are used to make Disney characters explain current U.S. copyright law.)

UPDATE (April 18, 2008): Russell Blackford argues that "Expelled"'s use of "Imagine" is to make comment on the content of the song, and makes a moral case for the legitimacy of its use. I agree with his argument--the use of a sample of the song to make comment on it enhances the case for "fair use," but I think it should have met fair use guidelines even without that.

UPDATE (April 23, 2008): As commenter lquilter points out below, the Bridgeport case did not say quite what I said above--it doesn't eliminate fair use as a defense to a use of small samples, it eliminates the argument that sampling is using so little of the original material that no copyright applies. The result is that a lengthier court proceeding is required to fight for such use.

"Expelled"'s makers are now being sued over the use of "Imagine." I don't feel bad for them, but I think they should win their case. This probably guarantees that the film will not make a profit from its theatrical run, after deducting legal expenses.

UPDATE (May 1, 2008): The Stanford Law School's Fair Use Project has signed on to defend "Expelled" against the Ono Lennon lawsuit. Good for them, I hope they win this one. It shouldn't be difficult.

UPDATE (May 2, 2008): P.Z. Myers points out distortions in "Expelled"'s press release about the their defense in the "Imagine" lawsuit. Even in the rare case when I agree with them (their fair use defense here), they still have to throw in a distortion or two to show that they are sleazy, I guess. (I disagree with Myers' assertion that there is no commentary on the song; see Russell Blackford's analysis, linked to above.)

Perhaps the strongest argument against "Expelled" in this case is that they sought licenses for other songs they used, but did not even attempt to get permission for "Imagine," as pointed out by Laura Quilter (who has also commented here).

UPDATE (May 5, 2008): The judge in the case has enjoined "Expelled" from any further distribution or DVD release, though they can continue showing the film in the theaters where it's already playing (currently down to 655 theaters).

UPDATE (May 9, 2008): And now down to 402 theaters.

UPDATE (June 2, 2008): The judge has ruled against Yoko Ono's motion for a permanent injunction against "Expelled" on the grounds that the defendants are likely to prevail.

The official "Expelled" paternity test

The folks at XVIVO have argued that "Expelled" has engaged in copyright infringement by directly copying from their film, "The Inner Life of the Cell." The "Expelled" producers have responded by claiming that they constructed their film based on original research:

However, the latest claim concerning the copyright status of our proprietary animation is so ridiculous, bogus and misinformed that we must respond. Premise Media invested significant time and money into the research and original creation of the animation used in our film to illustrate cellular activity. Our own team of experts created the highest quality of animation that is available. In fact, the animation we use in the theatrical release of our movie is only a small portion of the animation we have created and plan to use in future projects.

Darwin Central has proposed a paternity test in the form of a series of image comparisons. On the left hand side, images from a variety of sources showing a particular process in the cell that is depicted by "The Inner Life of the Cell." On the right hand side, a comparison image from the "Expelled" segment at issue. Surely, if the "Expelled" producers are correct, there should be no reason to find any special similarity between the image on the left that comes from XVIVO's film and the image that comes from "Expelled" versus any of the other images on the left.

See for yourself.

It also appears that other parts of "Expelled"'s animations have been taken from other sources, to which John Wilkins has a connection!

Yet Premise Media is suing XVIVO, seeking a declaratory judgment in Texas! This sounds like venue shopping or "forum shopping," since XVIVO is in Massachusetts.

UPDATE: ERV has a copy of the complaint and a summary. She also includes a new video, that she speculates has replaced the XVIVO-copied video in the final film.

UPDATE (April 19, 2008): The footage copied from XVIVO was apparently removed from the film before yesterday's public release.

P.Z. Myers fisks Michael Medved

Discovery Institute Fellow and bad movie critic Michael Medved has written an article arguing that an atheist should not be elected U.S. president. P.Z. Myers gives it a hilarious fisking at Pharyngula.

Arizona still #7 in foreclosures

Last November, I reported that year-over-year foreclosure rates had doubled and Arizona ranked #7 in the nation for foreclosures. Reuters reports that national foreclosure filings have gone up another 57% for the twelve-month period ending in March 2008. Arizona has been in fourth place for each of the first three months of 2008, despite foreclosures falling by 5% in March, and remains at the #7 position for overall number of foreclosures.

The twelve-month total foreclosure rankings:

1. California
2. Florida
3. Ohio
4. Georgia
5. Texas
6. Michigan
7. Arizona
8. Illinois
9. Nevada
10. Colorado

The March 2008 foreclosure rankings:

1. Nevada (1 in 139 homes)
2. California (1 in 204 homes)
3. Florida (1 in 282 homes)
4. Arizona (1 in 283 homes)
5. Colorado (1 in 339 homes)
6. Georgia (1 in 351 homes)
7. Ohio (1 in 448 homes)
8. Michigan (1 in 475 homes)
9. Massachusetts (1 in 486 homes)
10. Maryland (1 in 538 homes)

Arrested for dancing to celebrate freedom

A group of about twenty people went to the Jefferson Memorial at midnight (it's open 24/7) on Thomas Jefferson's birthday to dance silently (with iPods) in celebration of freedom, only to be forced to leave by the Park Police. This exchange then occurred between participant Brooke Oberwetter and a member of the security force:

GUARD: Exit, exit, exit. Lady, I'm not going to tell you again.

OBERWETTER: I'm just...what did we do?

GUARD: Exit. Exit, now...

OBERWETTER: What rule are we breaking? It's against the rules to dance?

GUARD: Yes it is. Read the sign inside the memorial. It says quiet.

OBERWETTER: I'm standing here being very quiet.

GUARD: You're dancing in here. That's disorderly.

At that point, Oberwetter allegedly asked "Why?" and was arrested. She was taken to jail for the next five hours and charged with "interfering with an agency function."

(Via Sinners in the Hands of an Angry Blog and The Agitator. The Agitator has further coverage here, here, and here.)

Expelled Exposed!

The NCSE's "Expelled Exposed" website has now gone live, and it contains a wealth of factual background information about the alleged cases of suppression of intelligence design presented in the film "Exposed," as well as highlighting other information left out of the film and the story of the deceptive methods used by the producers of the film.

The home page of the site features the story of Chris Comer, Director of Science for the Texas Education Agency. Unlike any of the alleged victims of persecution in "Expelled," she was actually forced to resign from her position. Not because she was an advocate of intelligent design, but because she sent out an email announcing a university lecture by Barbara Forrest, a philosopher critical of intelligent design.

The next main area of the site is titled "The Truth Behind the Fiction," which has the following sections:

THE SCIENTIFIC CLAIMS

• Evolution
• Intelligent Design
• Challenging Science
• Science & Religion
• Hitler & Eugenics

THE "EXPELLED"

• Richard Sternberg
• Guillermo Gonzalez
• Caroline Crocker
• Robert Marks
• Pamela Winnick
• Michael Egnor
  

The next area of the site, "Behind the Scenes," explains the deception, dishonesty, and hypocrisy of the makers of the film:

• What is Premise Media?
• Questionable Interview Tactics
• Marketing with a Motive
• Silencing the Dissenters
  

Finally, the last section of the site is a collection of resources which has been on the site for some time, but is constantly growing--a list of news coverage and reviews of the film.

Check out the site for the facts that the makers of "Expelled" don't want you to see.

Filmed for creationist DVD

Yesterday I spent a few hours being filmed in an interview for a DVD being put out by Creationist Ministries International, a 20-year retrospective on the 1988 debate at the University of New South Wales between Duane Gish and Ian Plimer. I went back and forth a few times about whether I should do it, finally concluding that it would be worthwhile.

I have no fear of an "Expelled"-like distortion in this case--the questions were provided to me in advance, and I negotiated the terms of the release agreement and had my attorney review it. I have the right to use the full footage myself (to put on YouTube or otherwise distribute or broadcast), so if I were to find myself misrepresented through creative editing (which I don't believe will happen), I would be able to demonstrate it.

My involvement was requested because of the role I played in criticizing Plimer and certain of the Australian Skeptics for misrepresentations of the creationists, which I wrote about first in the article "Some Failures of Organized Skepticism" in The Arizona Skeptic, and later in "How Not to Argue with Creationists" in the Creation/Evolution journal, "How Not to Respond to Criticism" which is available online through the talkorigins.org website, and in my review of Plimer's book Telling Lies for God, on my website. In preparation for the interview, I dug out my file folders regarding these articles, which amounts to a stack of paper
about six inches thick. Reviewing the files, I re-read some of the correspondence I had with Mark Plummer, then president of the Victoria Branch of the Australian Skeptics, and former executive director of CSICOP (now CSI). At some point, I should put some of that stuff online--it was quite unbelievable.

I thought it went pretty well, though it took me several takes to get through some of the questions, and I didn't say everything I wanted to say. The one item that I kick myself for forgetting to say was to emphasize the point that Duane Gish, debater for young-earth creationism, has two things that he always refuses to debate--the age of the earth and flood geology. Those also happen to be the two main areas of positive claims that make up young-earth creationism, which he rules out of court at the start of every debate.

The interviewer, Tim, is a CMI supporter who once applied for a job with Answers in Genesis and is now happy that he didn't get it, since he feels he was deceived by them about their split from CMI. The cameraman, Mike, who was hired for this job, was also a Christian, but didn't seem to be a young-earth creationist. He frequently films both interviews and outdoor nature footage, often for science documentaries, and he expressed his love for knowledge and science. We had an interesting discussion after the interview about creationism, Christianity, and science.

Tim took the position that young-earth creationism is an essential part of Christianity, because God must have been able to communicate his word accurately in the first place, because Jesus endorsed the truth of Genesis, and because death before the Fall in Eden would imply that God didn't create a perfect universe. He also holds the position that only "operational science" is valid science--that which can take place in the laboratory and be "directly observed" (which philosophers of science know is very little, since instrument-assisted and even naked-eye observation is "theory-laden"). (Tim's view of science, where it came from, and what's wrong with it is the subject of Christopher Toumey's excellent book, God's Own Scientists: Creationists in a Secular World.) I pointed out to him that that's the kind of choice--young-earth creationism or atheism--that helped drive me to atheism.

Mike, by contrast, didn't think young-earth creationism was essential to Christianity, but that the discoveries of science open more possibilities for religious interpretation. Today, I agree with Mike--given what I know about religions and how they work, Christianity is not defined solely in terms of the content of the Bible, even for evangelical Christians. Fundamentalism as it exists today didn't exist until the early twentieth century. And even within evangelical Christianity, there are those who have argued very forcefully against young-earth creationism (I pulled out my copy of Daniel Wonderly's Neglect of Geologic Data: Sedimentary Strata Compared With Young Earth from the Interdisciplinary Biblical Research Institute, and could have also pointed to Davis Young and Howard Van Till's Science Held Hostage: What's Wrong with Creation Science and Evolutionism, or pointed to Mike Beidler's blog, "The Creation of an Evolutionist").

I think it's interesting that if all Christians took Tim's viewpoint rather than Mike's, there would probably be a lot more atheists and a lot fewer Christians.

UPDATE (January 1, 2009): I wrote up my initial reaction to the completed documentary here, and you can view the video yourself here.

Expelled features anti-Semitic anti-Darwinist

John Lynch has discovered an unintentional irony in "Expelled." While the movie tries to argue that Darwinism led to Hitler, one of the anti-Darwinists interviewed in the film, Maciej Giertych, also happens to be an old-fashioned anti-Semite who thinks that Jews intentionally create ghettos to live in, are unethical swindlers who do not have any moral respect for the law, and who move to rich countries in order to exploit them. One commenter points out that Giertych has also praised Spain's fascist leader Francisco Franco (who is still dead). Another observes that Giertych is, in at least a small way, a Holocaust denier, denying that gentile Poles carried out the Jedwabne pogrom of 1941.

Giertych has also been published by Answers in Genesis' Creation magazine, in 1995, and is a signatory to the Discovery Institute's "A Scientific Dissent from Darwinism" statement.

Clearly, racism does not require a belief in evolution.

Ben Stein proves "Expelled" producers lied

Wesley Elsberry points out that Ben Stein has reported in an interview that he was approached for the "Expelled" project, described more or less as it finally came to be, back in 2006. Part of the pitch was that he was shown XVIVO's "Inner Life of the Cell" video.

Yet in April 2007 (a month after the "expelledthemovie.com" domain was registered), Mark Mathis obtained the cooperation of Genie Scott, P.Z. Myers, and other participants by pitching the nonexistent film "Crossroads," about the intersection of science and religion, from "Rampant Films," which had an innocuous website and an address at an empty apartment complex in Los Angeles.

Stein's interview provides further evidence that "Crossroads" was a dishonest subterfuge and that the "Expelled" crowd fully intended to use XVIVO's film in their movie and did not commission their copy until after William Dembski was sent a cease and desist notice in September 2007, delaying the film's release from February to April.

See Wesley's Austringer blog for more details.

Expelled's animator asked to have his name removed

ERV reports that Mike Edmondson, who was listed as the animator for "Expelled," has left his employment with Premise Media and asked to have his name removed from their website. (UPDATE: It looks like Edmondson probably was responsible for the "Beware the Believers" YouTube video, but not the ripoff of the XVIVO film. Good for him for cutting ties with these liars and thieves.) (UPDATE April 21, 2008: It's been confirmed that Edmondson made "Beware the Believers.")

She also points out that it is William Dembski who observed that "Expelled"'s producers set aside budget for copyright infringement lawsuits.

And that Jonathan Wells is helping with the foot bullets by claiming that "Expelled" produced their version of the XVIVO film in 3 months with one guy (where it took XVIVO a team of people 14 months).

Looks like ERV is the blog to watch on this issue. She's also the one who documented that William Dembski knew well that he was violating XVIVO's copyright.