Expelled Expelled

If you’ve been following the movie Expelled, you’ll know what I think of it. Well, we may not need to worry about it any more. Premise Media, the company which produced Expelled, is being sued by Yoko Ono for appropriating her husband’s song, Imagine. I heard about this a while ago – it started when the Huffington Post, concluding that the use must have been authorized, blasted Ono for supporting Ben Stein’s pseudoscience documentary. This (erroneous) post drew her ire, and ultimately led to her filing this lawsuit to preserve her from being publicly identified with the film.

Now, lawsuits happen, and their mere filing is no guarantee of the filing party’s victory, especially in a copyright case where the infringing use constitutes only ten seconds or so. But a recent e-mail I received from Stein (I signed up for his newsletter for precisely this reason) seemed almost plaintive in urging me to see the movie, and see it now.

If you haven’t done so already, PLEASE SEE EXPELLED NOW; its future relies on you. Without strong support from leaders like you, EXPELLED could get tossed from the theaters. PLEASE get out to SEE EXPELLED THIS WEEK. Ben is risking his career by taking on the world’s leading atheists, and he can’t do it alone – he needs your support.

Apparently Stein is running scared. So let’s accept his challenge: go see Expelled while you still can, but theater-hop to avoid paying him. Or, donate the price of the ticket to the National Center for Science Education.

Credit where it’s due on the “truth ticket” idea, by the way.

Of course, Stein and his groupies are defending the claim, asserting their free speech right to appropriate material and use it fairly. In just a second, I’ll get to the law, but let’s take a minute to consider how elegantly this latest chapter fits in with Stein’s entire modus operandi. Stein has had to lie to interviewees, cheat away negative reviews, and now steal content to make his point. But if his claim had merit, would any of this be necessary? Apparently, Stein feels that a creationist’s right to make his argument comes with the right to violate objective tenets of morality along the way. Fascinating.

So what will come of this case? Ono’s lawyers have filed for a preliminary injunction, a standard procedural device that would pull Expelled from theaters on the theory that any continuing harm to Ono’s statutory rights ought to be stopped while a court adjudicates the merits. Expect a preliminary injunction to issue only if the court thinks Ono will win at trial. So will she win at trial? The way I see it, Mrs. Ono has two claims. The first is for copyright violation, and we know that Premise Media will defend on the grounds that it’s “fair use.” See 17 USC § 107. Their defense will be effective if the infringing use constitutes “transformative” criticism or parody of the appropriated content itself. There is no fair use right to usurp content to parody a third party (thanks to “Concerned” for reminding me). See Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). This defense is, actually, colorable. Alternately, the use may be de minimis, meaning the infringement is so minimal as to be meaningless. See Ringgold v. Black Entertainment Television, 126 F.3d 70 (2d Cir. 1997) (holding eight seconds’ coverage of an artists’ piece, in a thirty minute television show, not de minimis). The amount and extent of the usage is important for this defense, but its relationship to the overall piece is more important for deciding whether it actually is de minimis. If the material is basic to the message, or instrumental in making a point, even if short, the usage is probably not minimal. Not knowing much of the facts, Mrs. Ono’s copyright claim still looks weak. Alternately, Mrs. Ono would be well-served to sue under the “right of publicity,” a statutory beast of New York state (and most other jurisdictions) that redresses improper use of a person’s fame. The publicity right therefore goes directly to what Mrs. Ono is claiming – that her affiliation with the film has tarred her name. I hope she asserts both.

Legally, Mrs. Ono’s suit is a toss-up. But clearly Ben Stein & Premise Media are scared. And that’s a good thing.

(Update: Tim Sandefur from the Panda’s Thumb, and his own blog, Freespace, has a good article on this subject too.  Check it out here).

Tags: Creationism, Law