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Do I detect a pattern?

As you may have heard, the latest controversy surrounding Expelled comes from the fact that they used a 25-second clip of John Lennon’s Imagine without permission. Apparently they use it over images of communism and Nazism, illustrating what you would have with “no religion”. In so doing, Mathis and crew have attracted the attention of someone far more important than David Bolinsky, PZ Myers or Abbie Smith: they have angered Yoko Ono. Premise Media’s response was to claim “freedom of speech”:

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.

It’s an interesting defense – free speech. I heard the same excuse being used for copying the XVIVO animation. Now Jim Lippard makes the point that this should be fair use, but legal precedent suggests that it isn’t:

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. 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.

Now broadly, I would agree with him, but if the precedent exists, then Premise Media can’t really go about claiming that it doesn’t exist. It is, of course, in keeping with the pattern of deception and misrepresentation that has characterised the entire production, starting with the way they managed to get their interviews with Richard Dawkins, Eugenie Scott and PZ Myers.

Over at Uncommon Descent, Dembski has been crowing on about “we’ve got them where we want them”. I would be puzzled if I heard that from someone other than Dembski, but Dembski has a habit of sticking his foot in his mouth while gloating.

So getting back to the original question – do I detect a pattern?  I’d say yes.  The level of misrepresentation surrounding this movie is incredible.  I doubt they set out to do things this badly.

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4 Responses

  1. Aha, but “Baldrick” Dembski has a CUNNING PLAN…..

    nicely put, they’re silly enough to have thought that this was a good idea:
    “Intelligent design proponentsists who lie, cheat on copyright and upset widows by defacing the international memory of their deceased loved ones, are persecuted by not getting promoted!”

  2. At this point, I’m betting that “Imagine” and the XVIVO-derived video aren’t even in the film. I think this is all just further manufactured controversy.

  3. Ian, I’d agree with Lippard but for the fact that this is a commercial endeavor. Fair use for commercial endeavors should in fact be stronger. While Lippard may be right that there are cases where a 1.5 second clip would be reasonable, 25 seconds is a much longer segment. The original song is 3:01 so this represents about 13% of the song, which is not a small fraction (how would one feel if one had such a fraction of a book). Courts have taken a complicated look at what is called “substantiality” however to some extent fraction of a work has been weighed in. Furthermore, we aren’t talking about their being any critical commentary or review of the song in question. This isn’t at all the same as a three-note rif.

  4. Jim, are you sure? Even if Imagine and the music from The Killers doesn’t appear in the final version, the earlier version was used in many locations. A back of the envelope calculation doesn’t make it implausible that this would hit $2500 worth of infringement which as I understand it (correct me if I’m wrong) would be able to trigger criminal charges.

    Meanwhile, has anyone yet found out if they had permission to use “Bad to the Bone”? If not, they could be in very bad shape.

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