Re: [asa] Expelled Explained

From: David Opderbeck <dopderbeck@gmail.com>
Date: Fri Apr 11 2008 - 18:55:44 EDT

I teach copyrights in law school and used to litigate them for a living.

It is highly unlikely that the frame comparison in Meyers' blog, by itself,
would constitute copyright infringement.

In order to judge a claim for copyright infringement of an audiovisual work,
it's necessary to compare the entire work -- not a single frame, a few
frames, or even a single sequence. The first step is to define the various
elements of the copyrighted work -- such as pictures, lighting, camera
angles, scripting, music, etc. The second step is to identify which of
those elements are copyrightable and which are not. Facts are not
copyrightable, nor are "stock" scenes, nor are things that are in the public
domain. The third step is to compare what remains both quantitatively and
qualitatively for "substantial similarity." This is called
"abstraction-filtration-comparison."

After this analysis is completed, any defenses, including fair use, must be
assessed. Fair use is assessed based on a multi-factor test, including the
nature of the use, the nature of the copyrighted work, the amount and
substantiality of the portion used, and the effect on the market for the
copyrighted work.

A key question here is how many different ways there are in which to portray
the molecular process that is the subject of the animations. No one can
monopolize the idea of animating a particular molecular process; copyright
protects only original expression, not ideas. There's absolutely nothing
unethical or illegal about copying an idea, or even about copying aspects of
the expression of an idea that can't be communicated otherwise.

Perhaps the entire sequence at issue is much longer than seems to be the
case, and perhaps there are many ways of illustrating it, in which case
maybe there's a viable infringement claim; but at this point, this all seems
like dubious culture war nonsense.

BTW -- search the archives and you'll see that I said exactly the same thing
when the Discovery Institute stupidly accused Judge Jones of "plagiarism"
for adopting part of the ACLU's proposed findings of fact in the Kitzmiller
case. Nonsense.

On Fri, Apr 11, 2008 at 4:01 PM, Dick Fischer <dickfischer@verizon.net>
wrote:

> NCSE comments:
>
>
>
> EXPELLED PRODUCERS ACCUSED OF COPYRIGHT INFRINGEMENT
>
>
>
> On April 9, 2008, XVIVO, the animation company which produced an
> award-winning animation of "The Inner Life of the Cell," charged producers
> of a forthcoming "intelligent design" film with copyright infringement. In
> a letter to Logan Craft, chairman of Premise Media, the producer of
> Expelled: No Intelligence Allowed (featuring Ben Stein), XVIVO claimed
> that a segment of Expelled portraying the complexity of the cell is
> patterned upon segments of their well-known animation, produced on behalf of
> Harvard University.
>
>
>
> Biologist P. Z. Myers, who was interviewed for the film, has posted a
> side-by-side comparison of the animations in Expelled with the XVIVO
> animation, writing, "do notice that they both have roughly the same layout
> and the same elements in view; this is a remarkable, umm, coincidence, since
> these are highly edited, selected renderings, with many molecules omitted
> ... and curiously, they've both left out the same things."
>
>
>
> In their letter, XVIVO's David Bolinsky and Michael Astrachan contended,
> "We have obtained promotional material for the 'Expelled' film, presented on
> a DVD, that clearly shows in the 'cell segment' the virtual identical
> depiction of material from the 'inner life' video. We particularly refer
> to the segment of the 'Expelled' film purporting to show the 'walk in'
> models of kinesic activities in cellular mechanisms. The segments
> depicting these models in your film are clearly based upon, and copied from,
> material in the 'Inner Life' video."
>
>
>
> XVIVO demanded that Premise Media "remove the infringing segment from all
> copies of the 'Expelled' film prior to its scheduled commercial release on
> or before April 18, 2008."
>
>
>
> For XVIVO's letter (PDF), visit:
> http://www.ncseweb.org/resources/articles/EXPELLED-Letter.pdf
>
>
>
> For P. Z. Myers's comparison, visit:
> http://scienceblogs.com/pharyngula/2008/03/about_that_cell_video_in_expel.php
>
>
>
> For NCSE's growing collection of resources about the film, visit:
> http://www.expelledexposed.com
>
>
>
> Dick Fischer. author, lecturer
>
> Historical Genesis from Adam to Abraham
>
> www.historicalgenesis.com
>

-- 
David W. Opderbeck
Associate Professor of Law
Seton Hall University Law School
Gibbons Institute of Law, Science & Technology
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Received on Fri Apr 11 18:57:22 2008

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