The cease and desist letter from XVIVO has now been officially answered. The Expelled web site now carries the following announcement:
Editor’s Note: Questions have been raised about the origination of some of the animation used in our movie EXPELLED: No Intelligence Allowed. Claims that we have used any animation in an unauthorized manner are simply false. Premise Media created the animation that illustrates cellular activity used in our film.
The Producers of “EXPELLED: No Intelligence Allowed”
Of course the XVIVO letter never charged Expelled with using their video. Here’s what it says:
We have been advised by counsel that this segment in your film constitutes an actionable infringement of XVIVO’s intellectual property rights, as protected by federal statutes, including Section 106 of the Copyright Act, the Visual Artists Rights Act of 1990, and the Digital Millennium Copyright Act of 1998. Each of these statutes provides for judicial enforcement of their provisions, with substantial civil penalties for their infringement.
We have also obtained legal advice that your copying, in virtually identical form, of material in the “inner Life” video clearly meets the legal test of “substantial similarity” between the copied work and our original work.
The standard for substantial similarity may have to be tested in court, but one thing is clear. Expelled will not be able to claim independent creation of their video. Here’s what Bill Dembski has to say about the creation of the Expelled video:
I’ve gotten to know the producers quite well. As far as I can tell, they made sure to budget for lawsuits. Also, I know for a fact that they have one of the best intellectual property attorneys in the business. I expect that the producers made their video close enough to the Harvard video to get tongues awagging (Headline: “Harvard University Seeks Injunction Against Ben Stein and EXPELLED” — you think that might generate interest in the movie?), but different enough so that they are unexposed.
It was a nice touch on the producer’s part to use the same music as the XVIVO video. Presumably they got permission from the artist — or is that another possible oversight to explore? But then again, one of the producers was for years in the music business. So most likely they’re covered here as well.
BOTTOM LINE: Before you think the producers of EXPELLED are idiots, you might think that they are chess players who have seen several moves ahead. For instance, have you ever thought who stood to gain the most from the Machine Video featured at UD a week ago? . . .
So according to Bill Dembski, who claims to be on intimate terms with the producer of the film (and who uses the Expelled version of the video on his website) the producers of Expelled engaged in a criminal conspiracy to copy the essential content of the XVIVO/Harvard video, with just enough changes to avoid copyright infringement. It’s a bit like arguing that it’s OK to produce Micky Mouse cartoons if you hire your own animators and you change the color of Mickey’s pants.
Generally it takes weeks and months to gather enough evidence to prove intent to commit a copyright violation, but Demski has scored an own goal, giving the plaintiffs exactly the kind of motivation and opportunity behind the act needed to demonstrate intention.
Good job, Bill. We wish you and you friends at Expelled the best of luck in court. As one of your blog posters says:
Well, if this goes to court, maybe this time we’ll get a solidly conservative judge appointed by President Bush, rather than some ACLU loving liberal.
This has also been blogged by ERV.