Copyright controversies of Expelled: No Intelligence Allowed

Producers of the 2008 film Expelled: No Intelligence Allowed, which promotes intelligent design with claims that its proponents are persecuted, have been accused of several copyright violations regarding their use in the film of a video explaining the internal functioning of cells, and of the song Imagine by John Lennon.

Cell animation sequence

The film uses animated sequences that represent the internal functioning of cells. These sequences were attributed to Light Productions and Out of Our Mind Studios by Variety; Joseph Condeelis is listed as the lead animator. IMDB identified Tom Whaley as the animator. However, PZ Myers found similarities between the animation sequences of cellular internal operations from the film and a video from Harvard University entitled The Inner Life of the Cell, produced in 2006 by XVIVO. Myers noted that the same errors and omissions were present in both animations. On April 9, a cease-and-desist letter was sent by David Bolinsky of XVIVO to the producers of Expelled, alleging that they had infringed XVIVO's copyright:

It has come to our intention [sic] that Premise Media and Rampant Films has produced a film entitled "Expelled: No Intelligence Allowed", which is scheduled for commercial release and distribution on April 18, 2008. To our knowledge, this film includes a segment depicting biological cellular activity that was copied by computer-generated means from a video entitled "The Inner Life of a Cell". XVIVO holds the copyright to all the models, processes, and depictions in this video, and has not authorized Premise Media or Rampant Films to make any use of this material. We have obtained promotional material for the "Expelled" film, presented on a DVD, which clearly shows in the "cell segment" the virtually identical depiction of material from the "Inner Life" video. Among the infringed scenes, we particularly refer to the segment of the "Expelled" film purporting to show the "walking" 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.

Intelligent design proponent William Dembski had been compelled to discontinue using the same video after XVIVO accused him of copyright violation for using it in his lectures in 2007. Commenting on the cease-and-desist letter to Expelled's producers, Dembski wrote that "the producers... made sure to budget for lawsuits." On April 15, he published a statement from the producers of the film alleging they had not engaged in any wrongdoing.

On April 11, two days after the cease-and-desist letter was sent, a statement was posted on the Expelled blog which stated Premise Media created the animation.

On April 14, the producers of Expelled, Premise Media Corporation LP and C&S Production LP, filed suit in United States District Court for the Northern District of Texas against XVIVO L.L.C. asking for Judge Sidney A Fitzwater to rule that Premise owns the copyright on the images in question. The suit has been characterized by SA Smith, a prominent critic of the film and intelligent design as a 'SLAPP,' a strategic lawsuit against public participation intended to intimidate and silence critics by burdening them with the cost of a legal defense so that they abandon their criticism or opposition. Smith suggested that the film's producers filed suit in Texas because it is one of the few states that lacks protections for defendants against SLAPPs. She also linked a Get Expelled - Cellular Animation Movie Clip uploaded by "getexpelled" to YouTube on April 15, 2008, and anticipated that this crude animation would appear in the film as a substitute for the contested animation.

PZ Myers reported on April 15, 2008 that it appears likely that some animation segments in the film were lifted from a PBS documentary as well.

Music

Producers of the film have also run into legal trouble over their unlicensed use of John Lennon's song "Imagine", having failed to seek the permission of the copyright holder, John Lennon's widow, Yoko Ono. Ono, Julian Lennon, Sean Lennon, and EMI Blackwood Music, Inc. filed a lawsuit (Lennon v. Premise Media) on April 23, 2008, in United States District Court for the Southern District of New York alleging copyright infringement and sought undisclosed damages. The film producers released a statement in response on April 23, 2008, stating that they believed they could use the music without permission under the fair use doctrine citing usage of 25 seconds of the song. On the following day, producers suggested in a press release that the suit was part of the repression of free speech, and that their filmmaker's behavior was constitutionally-protected. The section of the film in question shows archival clips of Joseph Stalin and Chinese communist party troops as the viewer hears John Lennon singing "Imagine" as the lyrics "and no religion too" are superimposed against the images. Ben Stein, the star of the film, said the lawsuit was humorous given the greater implication and meaning behind the song. "So Yoko Ono is suing over the brief Constitutionally protected use of a song that wants us to 'Imagine no possessions'? Maybe instead of wasting everyone's time trying to silence a documentary she should give the song to the world for free? After all, 'imagine all the people sharing all the world... You may say I'm a dreamer But I'm not the only one I hope someday you'll join us And the World can live as one," he said, citing lyrics from the song. James Boyce said not only is there "a legal requirement to contact the owners of the song," but "There also is the moral requirement -- thou shalt not steal. I never would have presumed that a group of people with movie experience would just steal music and then use it, but they did. This makes them crooks." On May 1, 2008 Stanford Law School’s Fair Use Project announced that they would help defend Premise Media.

Following the lawsuit's filing, a federal judge in New York issued an injunction preventing the further distribution of the film pending a hearing on May 19. In response, Premise's attorney, Anthony Falzone, filed oppositions to the preliminary injunction arguing, in part, that Lennon/Ono/EMI did not provide evidence they own the song and also claimed the music was used in fair use, for criticism. However, on May 19th the Judge ruled to "stay the original TRO pending his ruling, which meant that “Expelled,” then playing in theaters around the country, could not be reproduced or otherwise distributed."[1] On June 2, 2008, U.S. District Judge Sidney H. Stein in the Southern District of New York ruled against the preliminary injunction preventing distribution of the film, as the plaintiffs had failed to meet the standard required for a court to grant such a motion and on the basis of the information provided to the court, the defense of fair use would be likely to succeed in a full trial. Yoko Ono said she would appeal.

In addition, The Killers had licensed their song, but said they had been misled, with the request having said it would be used in a "satirical documentary" about "academic freedom in schools". After learning about the movie, the band "contacted the producers of the film to ask that the song be removed but it was too late."