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XVIVO Claims Copyright Violation in Expelled!

As has been previously reported by a number of bloggers, XVIVO believes that Expelled: No Intelligence Allowed has infringed on their copyright by using portions of their video The Inner Life of a Cell.

In a letter demanding that this material be removed prior to the movie’s release, and threatening legal action if it is not, David Bolinsky, XVIVO LLC partner and medical director, said:

It has come to our intention 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.

It looks like there is enough copying just in the promotional material that XVIVO believes it has grounds for this action.

It is just too ironic that a movie produced to tell us about the moral problems of atheism and “Darwinism” includes plagiarized material. Just amazing.

Stay tuned. Perhaps folks were expelled for plagiarism, and not for creative ideas!

Note: As I was putting in the link to the earlier article from ERV above, I note that ERV also has the full letter posted. So if you want more than my snippet go there. Come to think of it, go there anyhow. It’s a great blog.

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    1. Well, if you read my comment policy, you will see that it comes close to not existing, and it’s almost impossible to violate it in a trackback.

      Your trackback was awaiting moderation, though I don’t even see why that was. It may have innocently had some filtered words.

      I found a previous comment of yours grabbed by Akismet. Is it possible that folks are marking some of your comments as spam? That can cause them to get shuffled off in that way.

  1. For the following reasons, it is hard to take the letter seriously —

    (1) XVIVO has no right to demand the return of copies of the video. BTW, the video is available right here.

    (2) There was no demand for payment of purchase or royalties in lieu of deletion of the segment. Discrimination against the producers of “Expelled” in regard to sale or rental of the video could involve restraint of trade issues. For example, US law says about price discrimination,

    Section 13. Discrimination in price, services, or facilities

    (a) Price; selection of customers

    It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them . . . . .

    Also, the video was created in collaboration with Harvard University, which may have received government support for the project, so the video could be in the public domain. What does XVIVO’s contract with Harvard say? Arguably, anything co-produced by Harvard is in the public domain because of all the general government support that Harvard gets.

    Also, did the video have a copyright notice?

    You folks are ignoring or overlooking some important legal questions here.

  2. You folks are ignoring or overlooking some important legal questions here.

    Don’t assume that because you don’t know/understand something the principals involved don’t know either. Yes, the video contains a copyright notice, no the video is not public domain, no anything produced with the involvement of Harvard is not therefore in the public domain.

  3. “Don’t assume that because you don’t know/understand something the principals involved don’t know either.”

    C’mon, Alexandra; if everyone followed that principle there wouldn’t be any creationist movement at all. What fun would that be?

  4. Everything that Larry Fafarman said about copyright in his comment at 2008-04-10 01:36:38 is wrong. Where does he pull this stuff out from??

    I’ve been practicing intellectual property law for almost 50 years, by the way.

  5. Larry Fafarman,

    Your legal advice is a sure way to end up in jail or the poor-house.

    First, XVIVO has every right to require return of copies of the video. They don’t mean the original in the video. They mean but each and every copy which Expelled made of it.

    Second, XVIVO is not bound by the commerce acts since they are not engaged in commerce with the Premise. Had Premise Media come to XVIVO prior to using the materials and talked price then the two companies would be “engaged in commerce”. This is a copyright enforcement issue, not a business negotiation. Once they used copies of the materials without premision, XVIVO is under no obligation to do business with them.

    Third, the material is clearly copyrighted to XVIVO. The ID folks found that out when Demiski tried using it (with the copyright removed an his voice over) in his paid speaking tours.

    Forth, Harvard commisioned the work, but it is still copyright XVIVO. If you hire an artist to make a song, that doesn’t mean that you the copyright doesn’t stay with the artist (baring special agreement). Even if Harvard owned the copyright, the fact that public money was used doesn’t mean it is free to copy. Labs, artists, research projects, private-public partnerships, text books, etc. often hold copyright. The public still expects that it gets paid for materials which it paid to develop. You can’t use the Havard logo either. Strangely, Harvard has an interest in defending XVIVOs copyright since they paid for it (in terms of money and research time).

    Fifth, the letter demands do not need to be reasonable (not that they are). It’s only purpose is to put Premise on notice. If Premise stops its release and sends a letter back asking if just 1 and 3 are sufficient, or it can’t do 2 because of X, then fine. I.e. XVIVO can ask for anything they like — a billion dollars, letters of appology, public retractions, beer, Premise CEO to dance a jig, etc. This is merely a trigger at which XVIVO will sue Premise. They need not sure them for failure to mean any of these demands … the action could be based on previous use of the materials (say in the ads) or anything else. Unreasonable demands might make XVIVO look bad in court (should they sue), but that isn’t going to help Premise.

    Your legal advice is so much wishful thinking it isn’t funny.

    Premise is going to pull that film faster than you can imagine. They will either comply with every one of XVIVOs demands, or they are going to get their rears sued off. There isn’t a hope in heck that Premise could defend this in court if they released. It would take five minutes for XVIVOs team to ask for all production notes and copies of the video in disclosure and unless Premise has an army of biologists, supercomputers, etc. it would be pretty clear that they didn’t produce this by themselves.

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