Yoko loses


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

  1. says

    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.

  2. says

    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

  3. Ichthyic says

    hat tip to Glen for relaying the info about the lawsuit conclusion to begin with in the other thread.

  4. Aaron Luchko says

    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.

  5. ConcernedJoe says

    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!

  6. DeadRedZebra says

    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?)

  7. says

    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.

  8. says

    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.

  9. says

    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.

  10. says

    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 every< ->ever mistake. Instead I just posted twice and compounded my failure of language with failure of computer use…

  11. BMcp says

    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.

  12. says

    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.

  13. Robster, FCD says

    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.

  14. says

    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.

  15. Duncan says

    [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…

  16. HidariMak says

    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.

  17. mgrant says

    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.

  18. Benjamin Franklin says

    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!

  19. says

    “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.

  20. Leigh says

    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.

  21. Quine says

    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.

  22. Crudely Wrott says

    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 . . .

  23. says

    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?

  24. Benjamin L Harville says

    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.

  25. Benjamin Franklin says

    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.

  26. Paul W. says

    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.

  27. Charlie Foxtrot says

    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.

  28. John C. Randolph says

    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

  29. Graculus says

    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.

  30. mikey.duhhh says

    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.

  31. Sigmund says

    “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.

  32. says

    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.

  33. Ichthyic says

    “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.”

  34. Scott says

    [ Cross posted from Pandas Thumb ]

    from Judge Stein’s order (starting bottom of page 9):

    Here, defendants raise doubts concerning the validity of the renewal copyright by arguing that plaintiffs have failed to explain gaps in the chain of ownership. Without any evidence of invalidity whatsoever, however, defendants cannot rebut the statutory presumption.

    [emphasis added]

    Does anyone else see the irony and the common thread here? :-)

  35. says

    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.

  36. Ichthyic says

    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.

  37. Sigmund says

    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).

  38. mezzobuff says

    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.

  39. Grammar Nazi says

    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!

  40. Renier says

    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.

  41. scote says

    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.

    “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”

    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.

  42. Paul W. says

    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.

    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.

    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?

    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.

    I guess in the end I find the correlations made by the filmmakers just downright creepy.

    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.

  43. Matt Heath says

    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.

  44. pompousbore says

    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

  45. Kenny says

    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.

  46. MAJeff, OM says

    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.

  47. Beowulff says

    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?

  48. says

    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.

  49. BobbyEarle says

    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?

  50. Jud says

    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.

  51. says

    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.”

  52. JJR says

    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.

  53. MartinM says

    Look, it could’ve been an atheist group getting sued for sampling 15 seconds of Christian rock/rap in *their* movie.

    And? Seriously, what is it with all the comments which assume that any opposition to this ruling must be ideological?

  54. Brian says

    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

  55. says

    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?)

  56. s1mplex says

    “And in a rare double-whammy decision, polygamy has been declared constitutional.”

  57. Dave says

    Brain,

    All things considered, this movie was far from a commercial flop. . . . But no, it was not a total flop. That’s just wishful thinking on the part of some of the people on this blog.

    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.

  58. mds says

    Brian (#60)

    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.

    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.

  59. Tulse says

    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.

    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.

    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.

    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.

  60. Graculus says

    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.

  61. Walton says

    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.)

  62. Paulo says

    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.

  63. MartinM says

    On his blog Lawrence Lessig says he supports creationism, aka “Intelligent Design”.

    Where? Looks to me like he says precisely the opposite.

  64. Brian says

    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.

  65. says

    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?

  66. Dutch Delight says

    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.

  67. Brian says

    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.

  68. silkworm says

    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

  69. Tulse says

    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.

    By what math? You think they will sudden pull in twice what they have already made at the box office?

    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?

    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.

    Also, I think just getting the film to open on a large number of screens was a moderate victory for them.

    All it shows is that the producers were willing to throw money at the project.

    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.

    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.

  70. Paul W. says

    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 “here I’m criticizing Gish’s leaden prose, which I think should convince you he’s a dullard; now I’ll turn to criticizing Behe’s goofy alliteration, which I think should a hypocrite for criticizing my flippant style.”

    Many people seem to think that the Expelled folks bear some burden of proving that each aspect of what they’re criticizing is relevant to a very focused intellectual argument against one specific target. There simply is no such burden in fair use law.

    If they want to “quote” Lennon’s music along with his lyrics, that’s fine, for the same reason quoting goofy alliteration verbatim is fine. The burden is not on the user to prove that every aspect of what they quote is relevant to a focused argument. They can basically say, or just imply, “here’s an example of the goofy shit those people say,” and present it in all its verbatim glory, and hope the audience “gets” that it’s bad.

    The only issue should be whether using somebody else’s stuff cuts into their market for their stuff, by competing to sell the same product. Behe can’t say it isn’t fair use for P.Z. quote him, because P.Z. is not competing with Behe in that sense—he’s not trying to sell ID books and articles.

    Some people have said that they think it’s ridiculous to talk about “transformative” use of an audio clip that you’re playing, unmodified.

    But imagine this. Imagine that P.Z. posted something under the heading “Watch this,” with nothing there but a video clip of Stein ranting about how believing in God leads you to good stuff, and science leads you to killing people.

    Would that not be fair use because it’s not “transformative”?

    I think it obviously should be considered fair use. P.Z. doesn’t have to say a word about it for his readers to know that he is criticizing Stein and what Stein is saying. He’s not competing with Stein to say those things, or simply ripping off Stein’s performance of Stein’s riff.

    P.Z. should not have to textually quote Stein, much less paraphrase him. He should be able to present Stein’s clip in all its insane Stein glory, with Stein saying those exact things Stein’s imitable way, and rely on his readers to react as he can reasonably expect them to.

    It should also be okay for P.Z. to do that in the middle of criticizing somebody else—to say “reminds me of Ben Stein” and put the clip there.

    Likewise, if the Expelled folks want to play a clip of Lennon’s song, and take a swipe at him while criticizing P.Z., that’s cool.

    We should be playing that game.

  71. phantomreader42 says

    Kenny the death-cultist troll:

    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?

    Oh, are you claiming to have this evidence? Well show it to us. We all know you’ve got nothing.

    What is it that you think would prevent this amazing imaginary evidence of yours from getting out? Is it separate from your imaginary vast gay conspiracy to exterminate all christians, or is this some kind of grand unified persecution complex? Does it involve the Illuminati, or the International Bankers? Pehaps the dreaded Underpants Gnomes? The Penguin Mafia? The SOS Brigade? Or is it just a figment of your diseased imagination?

    Kenny the death-cultist troll:

    I don’t think ID is science. I am saying that I seriously doubt the agenda on some people and what they push.

    ID is just a load of garbage, much like everything you’ve ever said here.

    Whose “agenda” are you saying you “seriously doubt”? Or are you afraid one of those conspiracies you hallucinate will come after you if you dare to speak clearly? If you can’t say what you’re talking about, shut the fuck up and quit making an ass of yourself.

    Kenny the death-cultist troll:

    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

    This is, in fact, the entire reason the ID movement exists. Creationist frauds have no facts, no evidence, nothing worthwhile to contribute, just political manipulation and lies.

    Kenny the death-cultist troll:

    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.

    So, what do you claim is not being tested? What results do you claim are being skewed? Or are you just going to insinuate without making any clear statement, to avoid being buried under mountains of evidence that you’re wrong?

    Kenny the death-cultist troll:

    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.

    Will you ever learn that when your opinion is blatantly contradicted by known facts, you’re still WRONG? Will you ever learn that continuing to maintain an opinion in light of massive amounts of evidence that it’s wrong is LYING, even to yourself?

    No, it’s clear that learning is against your religion.

  72. phantomreader42 says

    Duncan @ #16:

    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’d recommend taking the whole movie, adding constant pop-up-video style remarks mercilessly mocking it and showing what a fraud it is (perhaps with fart noises in an homage to Dumbski). Then torrent the whole thing. It’s a far better fair use claim than their after-the-fact hack job on Imagine.

  73. Beowulff says

    At Paul W, #77:
    Thanks for the explanation, I think I see your point. Do I understand it correctly that Expelled does not have to show that their use of ‘Imagine’ was necessary to make their point about absence of religion leading to badness, or even relevant?

  74. John Scanlon, FCD says

    phantomreader42 #78; Kenny (death-cultist troll) really did spew those words

    What is going to happen is that there are people who are not strong Christians who will stop saying that homosexuality is a sin because they don’t want to get treated unfairly and the ones that do think it is a sin will be mocked at first and then put to jail for their hate crimes and then later on put to death.

    – I missed that bit first time after following your link, and just paste it here in case anyone else needed convincing that Kenny is a fucking loon.

  75. Paul W. says

    Do I understand it correctly that Expelled does not have to show that their use of ‘Imagine’ was necessary to make their point about absence of religion leading to badness, or even relevant?

    I am not a lawyer and I’m over my head now, but…

    I’m pretty sure they don’t have to show necessity. See the part of the judges decision where it cites the Jeff Koons precedent.

    Koons used a piece of somebody else’s photograph in a painting. It was just a woman’s legs and feet, and he could have used any similar legs and feet from any of a zillion other photographs for the same purpose—he didn’t have to use that photograph by that artist. I think the court ruled that it was fine because while there was no particular reason to use part of that photograph, there was no reason not to choose that one either. He was not copying most of the photo, and was creating a substantially different work of art, so the interchangeability argument worked for him, not against him. The original artist couldn’t show why he shouldn’t pick that particular photograph in a don’t-care situation. (Although I have to wonder why he didn’t use his porn star wife’s legs that time.)

    By that sort of reasoning, if Lennon is a good example of what their criticizing, it’s fine to use him, even if there are other good examples they could have used. It’s up to the plaintiff to show it was a bad choice, not up to the defendent to prove it was the best choice or a necessary choice.

    The situation is somewhat different than the Koons case, because their defense is based largely on criticism, not just “it’s a minor piece of a very different larger work.” That’s what justifies their using a “core” piece of Imagine, with some of the most important lyrics. For that they argue transformative use, which I agree with for the reasons in my last comment. They invert the sense of Imagine from utopian to dystopian, which is about as transformative as you can get, content-wise, even if all the superficial features are identical.

    So basically I agree with the Expelled folks that Imagine was a good choice to make their ironic critical point, and that “a good choice” is plenty good enough for fair use to apply. To invalidate their point, Ono would have to show that Imagine isn’t among the more recognizable atheistic utopian songs, but clearly it is, even if it isn’t the atheist utopian anthem.

    I need to read the judge’s decision more carefully and thoughtfully, but I don’t think they should have to show even that. Even if it were an obscure song that they picked as a fairly random example, it should still be fair use.

    For example, consider some of P.Z.’s postings tagged “Kooks.” He picks on various random minor-league kooks, showing some of the excesses that (inevitably?) happen in a culture where people are overly credulous. You could argue that he’s making an invalid critical argument—argument from anecdotes—but I think it should be clearly fair use if he plays short-to-medium-length clips of various religious goofballs, and points and laughs. He’s obviously being critical, and that’s good enough; the courts shouldn’t be in the business of deciding exactly what larger argument he’s implicitly making, or whether it’s a valid or focused argument.

    If he’s not competing with them for the same market, and reducing their sales in that way, copyright should be irrelevant. (If he is tarnishing their “brand” and/or “product” image and reducing their sales that way, all the better; that shows it is critical and transformative, and therefore fair use.)

    I’m not saying that the law is actually that broad and clear-cut, just that I think it should be. The Expelled lawyers did make an argument beyond “pointing and laughing is good enough.” They correctly arguing that slamming Lennon was a good example of the general theme of the movie, necessary or not, and the judge bought that narrower argument.

    I don’t know where exactly the line ends up based on this precedent. (Assuming it stands.) It does seem to be in the right general direction.

    For anything beyond that, I’d consult a lawyer.

  76. scote says

    @Paul W.

    I would agree that people misunderstand Fair Use. There is no right for a copyright holder to say no to legitimate Fair Use. Fair Use is an affirmative defense to copyright infringement and a right that does not require the approval of the copyright holder–an exception to normal copyright. The copyright holder has a right to say “no” and the Fair User has a superseding right to ignore the “no” and use the material anyway–if it meets Fair Use criteria. I think strong Fair Use rights are critical to our right to effectively criticize views represented in copyrighted material. However, the following statement by you is false.

    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.)

    Neither patent holders nor copyright holders have to license rights to anyone and can arbitrarily deny licensing to anyone. You can patent or copyright something and never agree to let anyone use it–that is your right as an IP monopolist for the limited time of the patent or copyright. Their is no duty or requirement to use a patent or copyright once granted. But, Fair Use is a limited exemption to copyright and does not require the agreement of the copyright holder.

  77. Duncan says

    I just want to say how proud I am of (most of) you for not taking the K’s bait. Let’s see if we can get through an entire thread next time, completely ignoring him. It’s so much quieter…

  78. Paul W. says

    Scote,

    Like I said, I’m not a lawyer, and you may well be right that patent holders can just say no.

    I seem to recall that there are some limitations on that, but maybe it’s only indirectly through antitrust law?

    I seem to recall that some corporations got busted, decades ago, for setting patent license fees ridiculously high. (But that it very seldom happens.) I may be misremembering, or that may only have been in cases where they bought up patents for alternative ways to do things, and set the prices high so that nobody at all could buy them. (Artificially strengthening their monopoly on one way to do it.)

    Given the near-zero enforcement of antitrust for the last few decades, that may have been “illegal” before but effectively “legal” now.

    Or I could just be wrong. That would suck.

  79. Patricia C. says

    Last Sunday I went to see the Indiana Jones movie and had a chance to quiz the theater manager about the Stein flick. When I went to see it there were 37 people in the theater, counting me. The manager said not even 200 people showed up for the movie during an entire five day showing! He further said that in Hermiston, Oregon not ONE person attended the evening showing. To me that is shocking. This is deep dark fundieland I thought the theater would be packed.

  80. BiG says

    Expelled is a complete flop? I’m sure you’d like to think so, PZ, but it currently ranks as the 12th highest grossing doc of all time, and it will certainly make it’s way into the top ten once it is released in Canada and beyond. And I project it will sell several million copies on DVD. So I’m afraid you’ve only begun to feel the impact of this movie.

  81. Paul W. says

    Neither patent holders nor copyright holders have to license rights to anyone and can arbitrarily deny licensing to anyone. You can patent or copyright something and never agree to let anyone use it–that is your right as an IP monopolist for the limited time of the patent or copyright. Their is no duty or requirement to use a patent or copyright once granted. But, Fair Use is a limited exemption to copyright and does not require the agreement of the copyright holder.

    I don’t think this statement is true across the board. There are various kinds of compulsory licenses.

    For example, IIRC, once a musical composition has been recorded and released by somebody, the owner of the copyright on the composition can’t refuse to license it to other people who want to record it. The composer gets to pick who records it first, IIRC, but that’s all.

    In some countries, you can get a compulsory license for a patent that you can show is “not working”—i.e., the owner isn’t licensing it to anybody, so it’s doing nobody any good—or one that’s necessary for exploiting a more important patent that depends on it. I don’t know if that’s true in the US.

    From the Wikipedia “Patent” article:

    Some countries have “working provisions” which require that the invention be exploited in the jurisdiction it covers. Consequences of not working an invention vary from one country to another, ranging from revocation of the patent rights to the awarding of a compulsory license awarded by the courts to a party wishing to exploit a patented invention. The patentee has the opportunity to challenge the revocation or license, but is usually required to provide evidence that the reasonable requirements of the public have been met by the working of invention.

    Check out the Wikipedia “Compulsory License” page, too.

    It does sound like you’re basically right, though. I haven’t found a general provision that patents must be licensed at “reasonable” rates. There seem do to be a number of special cases for things like patents on much-needed drugs, musical compositions, and cable rebroadcast rights for TV.

    Each of those is justified in something like the terms I was talking about—an exception to absolute monopoly rights for the public good—but there doesn’t seem to be a clear general principle you can appeal to in other special cases. You have to get laws (or treaties) changed, or precedents rejiggered.

  82. beagledad says

    Premise submitted an affidavit in the Lennon case stating that the producers would be irreparably harmed by an injunction because they needed a 10 to 20 week theatre run for the film to be profitable. Now, I can’t promise that they’re telling the truth, but if they are, the filmgoing public has slammed the producers just as effectively as a court injunction. The weekend box office receipts look like this:
    Week Amount
    1 $2.97 mil
    2 $1.39 mil
    3 $678K
    4 $329K
    5 $103K
    6 $35K
    7 No reporting available for week 7. Perhaps it isn’t showing anywhere, or the producers aren’t reporting because the numbers are too embarassing. I bet the Canadian theatre owners are just sooooo eager to have this turkey dumped in their laps.

  83. Tulse says

    I project it will sell several million copies on DVD.

    On what basis do you make that projection? Is that the same basis that the producers used to predict it would make over $24 million its opening weekend? Do they even have a deal with a major DVD distributor? Given that they couldn’t get the faithful out to the theatres at $7 a ticket, what makes you think millions will buy the DVD at $15-25?

  84. phantomreader42 says

    Tulse:

    Do they even have a deal with a major DVD distributor? Given that they couldn’t get the faithful out to the theatres at $7 a ticket, what makes you think millions will buy the DVD at $15-25?

    I suspect distribution of Expelled DVDs will be similar to AOL CDs and Chick Tracts, with comparable pricing. Just throw tons of shit out there and pray some of it sticks.

  85. Brian says

    Tulse: Thanks for the link. The other numbers I was reffering to were the Canadian release and later DVD sales. We’ll see how those go. It would not surprise me if they get into the black yet.

    As far as preaching to the choir goes, politically that’s what you can call shoring up your base. As long as they keep making some noise in the media, it can be spun to their advantage. They don’t need to convince us, scientists or anyone else. They just need to give some parents and a subset of Christian clergy a tool to use to indoctrinate the next generation after some stinging defeats in Dover and other places.

    They’ve done it before with similar tactics. They’ll do it again.

  86. Torbjörn Larsson, OM says

    So it’s a win for Fair Use.

    However, the motivation [thanks, Glen!] sounds both hollow and ironic:

    While conceding that “Expelled” is a commercial film, and that the copyrighted work, Lennon’s “Imagine,” is the kind of work that lies at the “core” of copyright protection, Judge Stein appeared to give credence to the defendants’ theory that the sequence of the movie that includes the 15 seconds of “Imagine” amounts to a “layered criticism and commentary of the song.” In other words, the movie-makers adequately “transformed” the work. Citing testimony, Judge Stein — who later in the opinion compares the case to a Second Circuit precedent called Blanch v. Koons — writes:

    The Cold War-era images of marching soldiers, followed by the image of [Joseph] Stalin, express the filmmakers’ view that [“Imagine”‘s] secular utopian vision ‘cannot be maintained without realization in a politicized form’ and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naivete of John Lennon’s views.

    The song criticizes the nationalism inherent in “Cold War-era” “marching soldiers”:

    Imagine there’s no countries
    It isn’t hard to do
    Nothing to kill or die for
    And no religion too
    Imagine all the people
    Living life in peace

    Sure it is “layered” as regard the transformation prong of the Fair Use criteria. But is it “criticism” if the assumption of no countries is dropped while the assumption of no religion is kept? (Leaving the argument whether communism was a state religion aside.)

    In such case we could also drop the assumption of people living in peace, and where would the “criticism” be then?

    I do hope Ono’s lawyers gets their act together. Fair Use may need support, but it should be a valid support.

  87. Patrick says

    After 7 weeks in release,the film is only 4.5 million dollars short of what the producers said they would consider a success for the opening weekend. By the producers own criteria, the film is a dismal failure. What more evidence does anyone need?

  88. Tulse says

    The other numbers I was reffering to were the Canadian release and later DVD sales.

    Right, but Canada is a tiny film market (about 10% of the US), and is much less religious, and the lousy US box office is going to put this on much fewer screens than it would have usually received. I wouldn’t count on the film making it into the black via its Canadian run — I’d be hugely surprised if they can make an additional $300,000 in that market. And that’s probably as far as it goes for box office outside the US — perhaps it could play in Australia, and maybe Britain, but there is no market for this film in Europe or Asia.

    As for DVD sales, as I noted earlier, I think it is highly unlikely that a $15-25 DVD will sell better than a $7 movie ticket.

    There is no way this film is going to make money.

  89. says

    Tulse@76:

    From your link:

    “If Expelled does turn a profit, Mr. Craft and his partners would like to create an investment fund to finance a variety of media projects, including other documentaries with a point of view.”

    I suggest that is the criteria for whether it’s successful, leaving aside their prior bragging – does the theatrical/DVD performance of this pile of crud encourage people to go out and make more piles of crud.

    DVDs usually make triple the theatrical box office. If that pattern holds true, then my guess is that they’ll be modestly encouraged.

    BTW, 1.5 is a multiple of 1.

    (Another BTW, I’m not the original Brian, but someone else. We are Legion.)

  90. says

    BTW, 1.5 is a multiple of 1.

    Yeah.

    BTW, .5 is a multiple of 1.

    No way did they spend as much making that movie as they spent on advertising to get butts in seats. No way did they keep anywhere near as much money as they spent on making it, and getting butts in seats.

    At this rate, I could comfortably retire on how much money they’ll spend printing DVDs to shove into the hands of unsuspecting theatergoers lined up to watch summer blockbusters, who’d really rather be reading Jack Chick tracts, which at least contain some production values.

    And in their Bizarro universe, that’s one of the most successful documentaries, evuh.

  91. Scote says

    Paul W wrote:
    “I don’t think this statement is true across the board. There are various kinds of compulsory licenses.”

    You are quite right. I hadn’t been thinking of the compulsory licenses at the time I wrote my post. Thank you for the correction. However, compulsory licenses are a limited exception and one I believe only applies to music, for some odd reason.

  92. says

    It’s heartbreak hotel for some atheists in denial, for they hoped Yoko’s lawsuit would go further than a mile. But in the display, they smile and say, all you creationists, go away…lol

  93. Paul W. says

    Torbjörn:

    Sure it is “layered” as regard the transformation prong of the Fair Use criteria. But is it “criticism” if the assumption of no countries is dropped while the assumption of no religion is kept? (Leaving the argument whether communism was a state religion aside.)

    In such case we could also drop the assumption of people living in peace, and where would the “criticism” be then?

    You have to understand the American conservative mentality these people are assuming. (I understand it all too well, having been raised that way.)

    These are people who think that hippie peaceniks were dupes of Soviet Communists. The peaceniks might want peaceful anarchism, but by tearing down everything right-thinking Americans stand for (especially Christianity and laissez faire capitalism) they were eroding our moral fiber and our political will to fight The Bad Guys. They were setting us up for socialism and caving in to things like communist dictatorship.

    The argument doesn’t have to be explicit or valid for it to count as “criticism.” It just has to push some buttons with its intended audience. If the intended audience is anything like my conservative Christian father, you can bet that a lot of them will immediately “get” the connection between atheist peaceniks like Lennon and the Communist Menace.

    If you understand why Real Americans (TM) worship Reagan and despise Lennon, you can see it as a clever piece of propaganda.

  94. jsn says

    “a completely flop”

    LOL! Yeah, right! And I’m sure you’d say that about Micheal Moore’s “Roger and Me,” too, which “Expelled” has topped.

  95. phantomreader42 says

    jsn the troll:

    “a completely flop”

    LOL! Yeah, right! And I’m sure you’d say that about Micheal Moore’s “Roger and Me,” too, which “Expelled” has topped.

    Look, everyone, jsn’s admitting he doesn’t have a fucking clue about the concept of inflation! And this on top of not understanding that a movie that cost more to advertise than it took in and made less in two months than the producers said would be a good opening weekend is a miserable failure! Truly, jsn is a Renaissance Idiot. He has an uncanny ability to be mind-bogglingly stupid on countless subjects at once.

  96. Tulse says

    LOL! Yeah, right! And I’m sure you’d say that about Micheal Moore’s “Roger and Me,” too, which “Expelled” has topped.

    The production budget of Roger and Me was $160,000. The production budget for Expelled has been reported at about $4 million. Expelled‘s marketing budget was reported to be “a multiple” of that, so conservatively another $8 million. Even though Roger and Me had practically no marketing budget (I don’t recall it being advertised on television, for example), let’s use the same multiple for marketing, and say that it cost another $320,000 to market.

    So, the total cost of Roger and Me was at most $480,000. The total cost of Expelled was (conservatively) $12 million.

    Roger and Me made $6,706,368 in domestic box office. That means it made a profit of $6,226,368.

    Expelled has made $7,614,754 in domestic box office. That means it currently has a loss of $4,385,246.

    See, math is easy! Now, I know that religious folks aren’t big on elitist things like evidence, but does that help to clarify the term “flop”?

  97. David Marjanović, OM says

    Tulse, how did you write in red when the <span> tag is forbidden?

  98. says

    Well, well. I’ve hard week or two and I’m feeling vindicated on something, so I’m going to crow unashamedly, just for once.

    I hate to say I told you all so, but (for just one example) …

    http://metamagician3000.blogspot.com/2008/04/expelled-defended-on-one-point.html

    For a couple of months now I’ve been running the same arguments that Premise ended up using in court (maybe I should have charged a fee since I went public with them first). I’ve run them in this forum and on my own blog. Some people commenting here have given them short shrift, but I always thought that they were powerful, based on the fundamental legal principles involved.

    I may only be a humble philosopher of law, not a practising IP lawyer, but there you go. :) (Hey, the fact that I came second in my graduating year at the most prestigious law school in Australia might suggest that I’m not a total idiot about how the law hangs together and what the underlying principles are supposed to be).

    Now we have a judge saying, in effect, that the same arguments have such a good chance of success that he expects Premise to win at trial.

    There was always a strong possibility, based on the fundamentals of what copyright law is really about, that the hostile and ironic use of “Imagine” in Expelled would be considered acceptable by the courts. I remind you all that copyright is a quite limited statutory right to restrict others’ use of information you’ve created. Copyright law is enacted by the legislature to encourage socially-valuable products. That policy has to give way to more fundamental goods that the law upholds, and which are catered for by fair use. We want to encourage products such as songs, but we don’t want to stop people commenting on them or to force them to pay a fee to have the privilege of doing so.

    Look, folks, we should never have confused two things (1) the people behind Expelled are a menace to science and rational thought (I agree) and (2) they must be wrong on every single issue in which they’re involved.

    Of course, it’s still possible that the fair use argument won’t prevail in the end, but I rest my case that it was a strong argument at the level of jurisprudential principle. A lot of people here wouldn’t even countenance it, but they were mostly relying on (understandably) cautious practices in the entertainment industry rather than on any deep reasoning about the policies underlying the law and where the priorities lie.

    I await the next step in the case, and the final outcome, with great interest.

  99. Kseniya says

    jsn The Idiot Troll strikes again!

    Does he get anything right, ever?

    (all together now)

    NO!

    Etha already did the math.

    Adjusted for inflation, Roger and Me has grossed 11.6 million, and netted 11.3 million.

    What I’d like to know is this: How many people have seen Expelled? How many have seen R&M? The same goes for all the other documentaries on the boxofficemojo list.

  100. Tulse says

    What I’d like to know is this: How many people have seen Expelled? How many have seen R&M?

    We can get a rough estimate of this based on ticket price inflation. Roger and Me was released in 1989, when the average ticket price was $3.97. It made $6,706,368 domestically, so that means that approximately 1,689,000 people saw it in its theatrical run. (I am only counting domestic run, since that seems most comparable to Expelled.)

    The current average ticket price is $6.88, and it has made $7,614,754. So it has been seen by approximately 1,107,000 people. So over 50% more people saw Roger and Me in North American theatres than have seen Expelled.

    Now these numbers are somewhat “fudged”. On the one hand, I don’t know if the box office for Roger and Me extends past 1989, and thus if the attendance figures would be adjusted downward very slightly because of the increase in ticket prices. On the other hand, if we are talking purely about audience, those figures don’t include DVD sales and rentals (which Expelled is yet to even have), don’t include international exhibition (again, something Expelled doesn’t have), and don’t include television broadcast audience.

  101. says

    According to the Discovery Institute’s latest blog entry, Now for a Film about Yoko Ono, Would-Be Censor, Bruce Chapman (the head of the Discovery Institute) is making excuses and claiming that the copyright suit was done to tie up the film at “a crucial point” and it’s an example of “authoritarian censorship” by “the cultural left.”

    Apparently, his excuse for the film’s failure is that Yoko was part of a left-wing conspiracy to suppress the truth. This ignores the film’s flagrant abuse of Yoko’s property, so who’s the lefty here? There’s more evidence for the Intelligent Designer than there is for Chapman’s latest theory. Naturally, I had to blog about it.

  102. Owlmirror says

    how did you write in red when the <span> tag is forbidden?

    You’re misremembering. The span tag has never been a problem, in and of itself.

    The use of “class=(whatever)” was failing, in span and blockquote tags, because all class declarations are silently stripped out. Yet any “style=(whatever)” works, in both span and blockquote.

    Well, to a certain extent, anyway. I haven’t tried all possible style declarations.

  103. Paul W. says

    For a couple of months now I’ve been running the same arguments that Premise ended up using in court (maybe I should have charged a fee since I went public with them first).

    I think I was first to say it, and first to say “I told you so.” (By one day in each case.) Neener neener.

    I’ll waive my fee, just this once.

  104. says

    The use of “class=(whatever)” was failing, in span and blockquote tags, because all class declarations are silently stripped out. Yet any “style=(whatever)” works, in both span and blockquote.

    I can’t spare time at the moment to go autodidactic on style tagging, but would you please test to see if style is the way to get PZ’s exclusive “creationist” tag to get Gumbies to show up behind blockquotes in comments?

  105. Paul W. says

    However, compulsory licenses are a limited exception and one I believe only applies to music, for some odd reason.

    No, there can be compulsory licenses of some other kinds of copyrights, and of some patents. See the Wikipedia “Compulsory License” page

    It’s mostly irrelevant to the fair use thing, except to demonstrate the more general principle of limiting IP monopolies for the public good. For example, you may be able to get a compulsory license to manufacture important stuff (like vital drugs) that there’s an undercapacity to produce in the voluntarily-licensed factories. That’s kinda cool, even if it doesn’t go nearly as far as I’d like.

  106. Owlmirror says

    I can’t spare time at the moment to go autodidactic on style tagging, but would you please test to see if style is the way to get PZ’s exclusive “creationist” tag to get Gumbies to show up behind blockquotes in comments?

    Oddly enough, I noted that they weren’t showing up when I looked at my own test, here.

    It looks like the gumby image is hosted on pharyngula.org, which appears to be nonresponsive at this point in time. Perhaps it has been hacked or turned off during PZ’s vacation from Morris?

  107. says

    ISTR PZ mentioning limited access to a Morris basement during his world tour, making email directed there inaccessible to him for now.

  108. Torbjörn Larsson, OM says

    you can see it as a clever piece of propaganda.

    Oh, it’s propaganda. I was arguing the legal standing, which apparently doesn’t care for if the criticism is Moore style documentary or propaganda. :-P

  109. BiG says

    Re: comment #105, Tulse, you’re the one exposing your ignorance here. If you knew anything about the film industry, you would know that producers stand to make only about 45% of the total box office take. So you’re right that Expelled is probably in the red, but they’re much deeper in the red than you’ve projected. Also, I’ve only ever heard a budget of $3.5 million for the film. Plus, few films ever expect to be profitable in theaters. They all count on the DVD sales, which will likely be quite strong for this film.

  110. Tulse says

    Tulse, you’re the one exposing your ignorance here. If you knew anything about the film industry, you would know that producers stand to make only about 45% of the total box office take.

    I was just being lazy, as I had noted earlier the standard producers’ percentage of box office receipts. However, thanks for pointing out that the film has done even more poorly than I said above (although I must admit to being a bit unclear as to how that supports your claim of the film’s success…).

    few films ever expect to be profitable in theaters. They all count on the DVD sales, which will likely be quite strong for this film.

    I’ll ignore the moving of the goalposts, and note that I asked earlier why the DVD sales will be so strong at $15-$25 a pop when there was so much difficulty getting the faithful to shell out $7 for a theatre ticket — that question is still unanswered.

  111. says

    Paul W. said:

    I think I was first to say it, and first to say “I told you so.” (By one day in each case.)

    I’m not sure that the link I gave was actually to my first public comment on the issue – I may have made an earlier comment here or on Richard Dawkins’ site. But I’ll happily accept your priority. :)

    I suppose the point is just that the judge’s reasoning is sound, but I encountered a lot of people with tunnel vision in various forums (including this one) when I put essentially the same argument. It’s nice to see that the majority of people on this thread seem to accept that the judge got it right and that it’s a good precedent if it stands.

    We’ll await further events – the trial, any appeals, whatever.

  112. Ichthyic says

    I expect the DVD/tape distribution of this piece of crap to look very similar to that of “Privileged Planet”.

    How did that one turn out?

    from what I recall, the vast majority of the copies of PP were given away for free to various xian groups.

    yes/no?

  113. says

    Thank you #1 and #5, I agree, and mildly disagree with PZ.

    Questions asking “is this a Fair Use” are complicated enough WITHOUT attempting to make a value judgment on the work in question.

    I too would like to see Fair Use expanded, but my reason for that position is that Copyright law has in my opinion been completely corrupted and made into a vehicle for monopolies, corporations and excessive profiteering.

    Were the copyright term restored to the original 15 years then we would have a lot more time to argue whether this or that is really “Fair Use.” But of course, you would rarely have a survivor inheriting “rights of authorship” and attempting to “protect” something they did not create (Yoko)

    Another example is the owners of the rights to “Gone With the Wind” attempting to suppress publication of “The Wind Done Gone” a re-telling of the story from the slave’s perspective. (They failed to suppress, thankfully)

    So, broadly, Intellectual Property Law is so completely broken, you almost have to become a lawyer to completely grok how perverted it really is in relation to its intent.

    The Mouse Is In Control. Disney Is Dead. Hannah Montana is fake.

    This comment is (c) copyrighted ™ trademarked and (r) registered.