One of the first rules of the movie business is: Make sure you aren't, ah, borrowing someone else's work in order to finish yours. It's called a "rights clearance," and, yup, it's frustrating and financially debilitating, but it's also a necessary evil -- no matter how many times you claim "fair use, fair use." It's something that Premise Media, the Dallas-based company behind that pro-Intelligent Design (or anti-evolution) doc Expelled: No Intelligence Allowed starring Ben Stein, is discovering in courtrooms 'cross America. And maybe they expected it -- after all, any press is good press, especially when you're trying to gin up "one of the widest, if not the widest, documentary releases in U.S. film history," as Premise claims in documents filed April 14 in federal court in Dallas.
There are two legal fights brewing over clips used in the film: one from a video; another, a song. It's the latter getting press this a.m., as the song is a little something called "Imagine" by a nobody named John Lennon. But first, a Connecticut-based scientific animation company called XVIVO is claiming that Premise infringed upon its copyright by using footage from an animated video called Inner Life of a Cell in Expelled. The award-winning eight-minute short was made specifically for the Department of Molecular and Cellular Biology at Harvard University in 2006 to illustrate "a three-dimensional journey through the microscopic world of a cell," and attempts to post it to YouTube in the past have resulted in its being yanked "due to a copyright claim by Harvard University."
The video is available on Harvard's Web site -- but it's preceded by a 2006 warning that states it's "for education use only," and that any distribution "for commercial purpose is strictly prohibited." And earlier this month, one of the makers of Inner Life of a Cell posted a warning, on The God Delusion author Richard Dawkins' Web site, that he was going to come after Premise for using footage from the animation without permission. It appeared on April 11 and reads, in part:
Once we uncover the EXPELLED animation dollar trail, and bring it to light, we will have even more fun. The sublimely ridiculous claim that EXPELLED uses completely original animation, in light of copying our work so closely that a budget was reserved to pay for an infringement suit by Harvard, is delicious! Why should I try to take you guys down when you are doing such a splendid job yourselves? For free! So go ahead and release your movie. Just keep track of how many tickets you sell. We may just find that data valuable, too.
Three days later, Premise sued XVIVO in U.S. District Court in Dallas, claiming that the animation doesn't come from Inner Life of a Cell at all. Rather, says the lawsuit, which you can read in its entirety here, the "animated segment of the Documentary Film's depicting the interior of a cell was independently created." Hence, the lawsuit -- Premise's way of heading off XVIVO at the courthouse.
But Premise never says who made the video for Expelled. And the suit spends a great deal of ink insisting that Inner Life of a Cell shouldn't be subject to copyright protection anyway, since you can't protect "ideas of scientific processes."
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XVIVO has not yet responded to Premise's complaint. The suit was delivered yesterday to the company's attorney in Connecticut, Joshua Teplitzky, who has 20 days to respond. He was in a meeting this morning an unavailable when Unfair Park tried to get a comment concerning the litigation.
Then, yesterday, Premise found itself at odds with the widow of a Beatle: Yoko Ono, along with Sean and Julian Lennon, have sued Premise in Manhattan federal court over the use of "Imagine," which appears in the film and which Premise insists falls under the fair-use doctrine. According to the suit, Ono isn't taking kindly to "Internet bloggers" who've accused Lennon's widow "of 'selling out' by licensing the song to defendants."
Meanwhile, Premise released a statement, according to the BBC, in which producer said they used only a little of the song and, well, "Unbiased viewers of the film will see that the 'Imagine' clip was used as part of a social commentary in the exercise of free speech and freedom of inquiry."
Expelled was released last week -- and it came in No. 10 at the box office, just behind George Clooney's Leatherheads, taking in $2.97 million. For what it's worth, a New York Times review called the movie "one of the sleaziest documentaries to arrive in a very long time" and "a conspiracy-theory rant masquerading as investigative inquiry." Christianity Today, though, liked it quite a bit. --Robert Wilonsky