Judge orders further distribution of Expelled stopped

[DeathMagus]

somehow I don't envision you guys really concerned about copyright infringement. I could be wrong, but I doubt it.

You're right - it's not the copyright infringement itself I have a problem with - it's that a group of people trying to pass themselves off as credible would make such an amateur mistake.

 

[plindboe]

Man --- and I'm only sarcastic. You guys get downright brutal when your faith gets stepped on.

So they compare evolutionists to nazis and say we are responsible for the Holocaust, and in return we hope that their film fails and they lose money.

You really need to check your bias if it skews your sense of right and wrong so dramatically that you can't even tell which is which.

Peter

 

[Tomk80]

Well, I haven't seen this movie, and I don't even know what Yoko Lennon is all upset about; but somehow I don't envision you guys really concerned about copyright infringement. I could be wrong, but I doubt it.

What Yoko is upset about is using a number without paying for it, when making money of that number by using it in a film. The issue is whether the clip they used of the number falls in the fair-use policies. Don't know how that will turn out though, Expelled may have a case for fair use here.

And you'd be wrong, at least in my case. I've worked with copyright a bit when I was still making music and have spent quite some time figuring out copyright laws for associations I was in and an ICT company I worked for (since copyright also applies to websites). I'm one of those idiots who even buys movies and series on DVD instead of downloading them.

And before you come with the next accusation, if a film from the evolution side would not respect copyright, I would hope they'd get sued just as well.

 

[ranmaonehalf]

Does it even matter? The number of theaters has been going DOWN not up.

ditto

 

[ranmaonehalf]

is anyone wondering about the expelled merchandise?

Ben stein talking doll with special phrases.
(pull his strings...... he h ehhe and he says....)
"beuler beuler beuler"
"hitler and darwin slept together"
"Your a brilliant person but your an evil evolutionists that caused the halocost."
"evolutoin doesnt explain the begiing of time, or the galazy or me...."

 

[Dracil]

I know it's cliche to bash on expelled, but i don't think this qualifies as copywright infringement. ( i'm not a lawyer though, so who knows ) But mean the song goes "Imagine no religion", so i think they have a legitimate argument to fair use in that they could plausibly say they're criticizing what the song stands for, it's not like they're playing that particular song because they like the music.

1) They are not criticizing the song, they are using the song to criticize something else
2) It's being used in a commercial work - this is the biggie, if it was non-commercial they could probably get away with it, but because they're using the song to make over $7m, they're in hot water

 

[thaumaturgy]

I know it's cliche to bash on expelled, but i don't think this qualifies as copywright infringement. ( i'm not a lawyer though, so who knows ) But mean the song goes "Imagine no religion", so i think they have a legitimate argument to fair use

In terms of relevant social commentary, perhaps. There is "fair use" that takes that into account. Of course that is why it must be adjudicated.

in that they could plausibly say they're criticizing what the song stands for, it's not like they're playing that particular song because they like the music.

Indeed. This is, as so many other copyright cases, like Campbell v Acuff-Rose (LINK) one that will have to be examined. If, indeed, they were making a point about the religious commentary in the song and it was pertinent to the discussion I'm sure they will have no difficulty in prevailing. That will be up to a judge.

I was merely commenting on AV1611VET's little aside at how brutal people can be when it comes to "faith". Indeed intellectual property rights are not a "faith" issue but fundamental to the U.S. legal system. It is a direct outgrowth of Article 1, Section 8, Clause 8 of the U.S. Constitution:

Section 8. The Congress shall have power ...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;(SOURCE)

If AV1611VET thinks this is a "faith" thing, then I shall strongly disagree. We are a country of laws and when those laws are subverted for whatever reasons they must be enforced.

That was my point.

 

[thaumaturgy]

2) It's being used in a commercial work - this is the biggie, if it was non-commercial they could probably get away with it, but because they're using the song to make over $7m, they're in hot water

Actually the fact that they make a profit or not may turn out to be secondary if they claim to make a relevant commentary.

In Campbell v Acuff-Rose the court established four factors for fair-use consideration:

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.

In this case the court found that the commercial nature was only one aspect. In this case, the topic was around a song by "2 Live Crew" utilizing part of the song "Pretty Woman" but substantially transformed it into what the band called a "parody".

In the present case the topic was around parody and if it was substantially different (apparently it was in the courts opinion) and if it rendered harm to the market value of Orbison's original song (apparently it wasn't in the court's opinion since parodies usually don't supplant the original).

Surely critiques and "reviews" (like book reviews) published can use small parts of copyrighted works. This falls under the "relative amount" criterion. Reviews fall in "Fair Use" in part because of the utility and the small amounts extracted for commentary, if I recall correctly.

How this will play out I dunno (I'm not a lawyer, nor do I play one on TV), but it will likely not hinge on the commercial nature of the movie.

 

[sbvera13]

There are 3 legal points, as I understand it, that are relevent.

1. One of the major, identifiable portions of the song was used in a commercial production without permission.
2. Said use goes against the orginal artistic intent of the artist, distorting the work (this is where Premise will put up an argument, but they won't win. Lennon's ideas!=Stalin's ideas, which is what the movie implies)
3. There was a massive publicity backlash against Yoko Ono after the release of the film, by people who accused her of selling out her husband's work for petty cash. It was not until later it became well known that the piece was stolen. This reputation damage is legally liable since the work was used without permission.

Now, IANAL, but from reading articles by people who are, that should sum it up.

 

[DeathMagus]

I think one of the biggest issues of the case is exactly how much of the song was used. Even for the purposes of analysis, the amount of a work you can use without obtaining extra permissions is only so much.

 

[Nathan45]

2. Said use goes against the orginal artistic intent of the artist, distorting the work (this is where Premise will put up an argument, but they won't win. Lennon's ideas!=Stalin's ideas, which is what the movie implies)

does it really matter whether Premise's premise is correct?

They're not using the song because they like the song, they're using it because they're trying to criticize godless communism and it's alleged influence on america.

It's not like they are using the song because they like the beat, and then just saying after, ad-hoc, that it was fair use... no, they're using the song because they don't like what the song stands for and they want to criticize it.

IMO, intellectual property laws in general are overly draconian anyway.

 

[UncleHermit]

Based on my (admittedly limited) understanding of copyright laws, I think that "Expelled" might actually have a case here. Although I can understand why Yoko is angry - I've heard that "Imagine" is based on one of her poems, and to use it in a propaganda film like Expelled would...well, if it were my poem or my song, I would be angry as well, and I'll leave it at that.

 

[sbvera13]

In music, the amount of the work used means less than the identifiability of it. A 10 second AC/DC guitar riff may be the defining characteristic of a song; if so, that 10 seconds would be more of a violation than 30 seconds of random drumbeat, for example.

In the expelled case, I think the defining issue will be whether it's used as fair commentary or unlawful appropriation. Since the movie does not comment on the song directly, and uses imagery to convery the opposite meaning from what the artist originally intended, I don't think they have very strong grounds there. But courts being courts, and lawyers being lawyers, who knows how it will turn out.

 

[UncleHermit]

Since the movie does not comment on the song directly

Oh, well that's different. Is it just sort of background music, then? Sorry, haven't seen the movie.

 

[Washington]

The acknowledgment that Premise Media did not seek permission.

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.
source
​

Premise Media's logic

Executive Producer and Chairman of Premise Media Logan Craft explained, “The fair use doctrine is a well established principle that gives the public the right to freely use portions of copyrighted materials for the purposes of commentary and criticism. While some may not like what we have to say or how we say it, we have the free speech right to do so - just as other political and social commentators have been doing for years.”
source
​

The lyrics

The makers of "Expelled" used a 10-word sample of John Lennon's "Imagine" in their movie. The song includes the following lyrics:

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
​

source
​

The question: Do these lyrics support relevant commentary and criticism of the movie's arguments or aims?
I haven't seen the movie, but I have a hard time imagining how they would qualify.

 

[sbvera13]

Havn't seen it either, but I've read multiple reviews and they all agree with each other in their descriptions of this scene.

After concluding that Darwinism--->Atheism, it then goes on to show that Atheism--->Evil, by showing images of Stalin to the part of Lennon's song that goes "Imagine there's no (etc)... and no religion too." Now, the point of the song was to suggest that removing all the arbitrary boundaries we create between ourselves would produce peace. The movie sppears to take a small portion of the song out of context to show the exact opposite of what it was trying to say originally, namely that a lack of religion causes megalomaniacal, homicidal tyrants that manipulate political ideaology to gain personal power. I'm not sure how that qualifies as commentary on the song, since they're using it to support an argument.

 

[thaumaturgy]

does it really matter whether Premise's premise is correct?

No.

They're not using the song because they like the song, they're using it because they're trying to criticize godless communism and it's alleged influence on america.

And that will be their strongest suit. As a criticism of the content of the song. So long as they only used a small portion, but even that would be open to interpretation.

IMO, intellectual property laws in general are overly draconian anyway.

I must differ here. I would dearly love all content to be free, but the whole point of IP is not necessarily established to protect "big business" as many critics think, but hopefully to protect the author or inventor. The "draconian" extent comes in when powerful attorney-laden corporations plead the need to protect themselves by suing little teens for swapping songs.

But indeed, IP law can be very useful. It can also be abused. There are some limitations on the abuse of IP law.

In this case it will be interesting to see how this pans out. It's a tough call. Like it or not, if they felt this was in some way a reasonable criticism of something related to Lennon's song and it could not have been achieved using a more "open" method, then it might stand. Depending of course on how "much" of the song was used.

If it was simply used as "background" music without permission, then they'd be in for a world-o-hurt.

Like it or lump it, if an artist puts out a public work it can be quoted in small bits for purposes of criticism under "Fair Use".

 

[Nathan45]

The makers of "Expelled" used a 10-word sample of John Lennon's "Imagine" in their movie. The song includes the following lyrics:

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
​

source
​

The question: Do these lyrics support relevant commentary and criticism of the movie's arguments or aims?
I haven't seen the movie, but I have a hard time imagining how they would qualify.

I call shenanigans.

"The song includes the following lyrics" and "The makers used... a 10 word sample" ... it strongly implies but doesn't say those were the lyrics used, and that's not 10 words. I was working under the assumption that the lyrics used in expelled from imagine were the anti-religious lyrics, can anyone confirm?

edit:

according to this source, the actual lyrics used in expelled:

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.”

That's the 10 words of imagine used in expelled "Nothing to kill or die for, And no religion too."

Yeah, it's stupid, but as i said, it's not like they're using the song because they like it, they are criticizing the atheism that is portrayed in the song. IMO this qualifies as fair use, but i'm not a lawyer.

 

[Nathan45]

I must differ here. I would dearly love all content to be free, but the whole point of IP is not necessarily established to protect "big business" as many critics think, but hopefully to protect the author or inventor.

I don't see how yoko ono is being hurt by expelled using a 10 word portion of john lennon's song. If anything, it's generating more interest in the song, free marketing. It's not like people are going to rewind expelled over and over again just so they can listen to that 10 word clip instead of actually buying the song.

The "draconian" extent comes in when powerful attorney-laden corporations plead the need to protect themselves by suing little teens for swapping songs.

But indeed, IP law can be very useful. It can also be abused. There are some limitations on the abuse of IP law.

as much as i dislike expelled and premise media, i think this qualifies as an abuse of IP law. And it seems that in the context of the movie the song is clearly being criticized... i'll say again it's not like they're using that particular song because they like the beat, they're criticizing what it stands for.

 

[thaumaturgy]

I don't see how yoko ono is being hurt by expelled using a 10 word portion of john lennon's song.

I would agree, but it isn't for the law to assess the just and unjust, just enforce the law as adjudicated and established.

I'm sure Yoko hurts not at all, even if every copy of "Imagine" were to never sell again.

If anything, it's generating more interest in the song, free marketing.

There actually is a ruling in copyright law that covers record stores playing music to further the sale of music. I forget the name of the case.

But in reality it doesn't matter in this point. The "copyright" covers only the artist or those who have license rights to distribute the work as the artist or licensee sees fit.

So, one could claim that playing a specific artists song at a Nazi rally would actually help generate sales, but if that artist vehemently disagrees with nazis and thinks it horrendous, the artist can still sue the nazis for playing his or her music without permission. The right is the sole right of the licensee or the artist to enforce.

It's not like people are going to rewind expelled over and over again just so they can listen to that 10 word clip instead of actually buying the song.

Indeed. Maybe Premise Media was counting on that?

as much as i dislike expelled and premise media, i think this qualifies as an abuse of IP law.

I don't know if this will classify as an abuse, because certainly as my earlier reference to Campbell v Acuff-Rose was not really an abuse of copyright law enforcement, it is also no guarantee of which side will prevail. It is likely, from the examples given here (I have yet to see the movie) that Yoko et al will not prevail.

And it seems that in the context of the movie the song is clearly being criticized... i'll say again it's not like they're using that particular song because they like the beat, they're criticizing what it stands for.

I think you are correct here. I believe that Premise Media will prevail.

As Judge Kozinski wrote in his finding in Mattel Inc v. MCA Records v Universal Music (296 F.3d 894) "The parties are advised to chill." (SOURCE)

(For pure fun content this ruling is one of the finest pieces of legal writing I've ever run across. It includes these gems:

If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.

and

After Mattel filed suit, Mattel and MCA employees traded barbs in the press. When an MCA spokeswoman noted that each album included a disclaimer saying that Barbie Girl was a "social commentary [that was] not created or approved by the makers of the doll," a Mattel representative responded by saying, "That's unacceptable.... It's akin to a bank robber handing a note of apology to a teller during a heist. [It n]either diminishes the severity of the crime, nor does it make it legal." He later characterized the song as a "theft" of "another company's property."
48 MCA filed a counterclaim for defamation based on the Mattel representative's use of the words "bank robber," "heist," "crime" and "theft." But all of these are variants of the invective most often hurled at accused infringers, namely "piracy." No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable "rhetorical hyperbole," Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir.1999). The parties are advised to chill.

Any judge that uses the phrase "No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo." has got my attention!