Copyright claims against Expelled

4/11: I had previously (3/27) drafted a brief commentary on Expelled‘s use of copyrighted material. Then, I unposted it while I checked on something, to try to make it more complete. I hadn’t gotten back to it, when the other shoe dropped: One of the copyright holders’ whose material was used in Expelled wrote a published a draft cease & desist letter to the filmmakers. So, I’m re-posting my original comment, even though I haven’t yet had a chance to figure out the licensing status of the animations in question, and I’m doing a more detailed analysis below of the current set of claims. Consider this a rough draft of an analysis.

In part, I’m rushing this out because there are a few misconceptions about copyright and fair use on the Pharyngula blog comment thread. I’ll have to come back & add in the relevant cites when I’ve got a bit more time (probably not before Sunday), and I may have more considered analysis at that point. Right now, this is my quick first impressions on the merits of the claims that XVIVO is making, and the merits of the likely defenses that Expelled could raise.

I’ve gotta say, I’m rarely so personally sympathetic with a cease and desist as I am with this one, a letter from Peter Irons on behalf of XVIVO to the makers of Expelled, for using without permission a biology animation that XVIVO did.

However.

The misuse of science is not the same thing as the misuse of intellectual property, and I have, unfortunately, a number of problems with this cease & desist letter. My problems are more tactical and, of course, from the perspective of a fair use / information policy attorney. But I’ll go through a bit of legal analysis first, because there are some interesting questions. If you don’t find details of copyright interesting, skip to the last 3 paragraphs.

XVIVO’s claims:
The basic IP claims that XVIVO raises are:

We have been advised by counsel that this segment in your film constitutes an actionable infringement of XVIVO’s intellectual property rights, as protected by federal statutes, including Section 106 of the Copyright Act, the Visual Artists Rights Act of 1990, and the Digital Millenium Copyright Act of 1998. Each of these statutes provides for judicial enforcement of their provisions, with substantial civil penalties for their infringement.

Let’s take the straightforward copyright claim first. First, XVIVO states:

We have obtained promotional material for the “Expelled” film, presented on a DVD, that clearly shows in the “cell segment” the virtually identical depiction of material from the “Inner Life” video. 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.

Assuming prima facie infringement
I’m going to assume that the Expelled animation is in fact substantially similar to the XVIVO video, and the amount taken is not de minimis, and that XVIVO is the copyright holder to the work, and has not licensed it for this kind of use. (The ownership is not completely clear, actually. XVIVO, the animators, Harvard, and even HHMI have had oars in the water at various times.) I’m assuming, in other words, that there is a prima facie case of infringement. This seems reasonable based on the descriptions, in many places, of Expelled‘s use of a video that many people recognized or thought was the XVIVO video.

Is the XVIVO video copyrightable? Yes
One possible defense Expelled might raise is whether the XVIVO video is copyrightable at all. Indeed, there is a possible originality issue with the animation, which I think is not fatal to XVIVO’s copyright claims. The animation is of a biological process. Expelled can point out that artistic and CGI renderings of real things have not always fared well in copyright cases. I was just re-reading these cases for another matter, so here a few relevant examples off the top of my head: In the jellyfish sculpture case in the 9th Circuit (Satava v. Lowry, 9th Cir., 2003), the Court held that only identical copies would infringe; that the individual elements and so forth of the sculpture were not each copyrightable. The District Court of Utah held that a CGI model of a Toyota did not even have sufficient originality to get its own copyright. (Bill Patry discusses the latter case.) However, a 9th Circuit case did find copyrightable protection in a 3D model. This is by no means an exhaustive survey of such claims, but it’s a reasonable defense for Expelled to raise. My own review of the video a month or two ago suggests to me that it has a strong claim of falling more in the realm of creative original expression than the jellyfish sculptures or the Toyota model: the visualized material isn’t visible to the naked human eye, and coloring, motion style, actual shape, background cellular structures, and a variety of other elements all have to be independently selected. David Bolinsky, a major scientific illustrator that worked on the original animation, “The Life of the Cell”, described the creative decisions thusly:

XVIVO created The Inner Life of the Cell for Harvard, through fourteen months of painstaking examination of how a myriad of systems, functional structures and proteins in a cell, could be depicted in a sweeping panoramic style of animation, reminiscent of cinema, that fundamentally raised the bar on the visualization of molecular and cellular biology for undergraduate students. In depicting what we did, other than merely maintaining the intent of the syllabus, we needed to edit like mad. A cell has billions of molecules, millions of active functional proteins and tens of thousands of structural elements separating, sequestering and joining compartments and systems into a functional whole. An initial foundational decision process of our creative vision, consisted of editing out 95% of the contents of our cell in order to gain, for our virtual camera, a vista to visualize what elements we left in. The decisions we made blended aesthetics with science. richarddawkins.net

The significant amount of imagination and visualization skills needed to create the animation will place it, I believe, safely on the copyrightable side of the originality threshold. (And read the rest of David Bolinsky’s description of the aesthetic and editorial decisions they had to make to make the animation — amazing.)

Nevertheless, as with a news report that is copyrightable expression detailing something factual, the factual nature of the underlying information is going to be a plus for the fair use of the work. On balance, although I don’t think it’s strong, I do think there is a colorable fair use claim.

    Relevant links from pharyngula thread: Note from David Bolinsky, a medical illustrator closely involved in developing the animation. See also “Inner Life of the Cell” at YouTube, and the version at Harvard (these are the same, I believe, but no need to overload Harvard’s servers); and see video used in Christian lectures, possibly the same one used in Expelled.

Fair use: Maybe
The first fair use factor, purpose and use of the work, is I think a wash for both parties. Expelled styles itself a documentary, and in fact is on the general topic of the video. However, it doesn’t appear that the animation is really necessary for the film; in fact, it appears that it’s being used simply as a attractive screen-filler. Expelled is not critiquing this animation, nor the claims of this film’s animators — so there doesn’t appear to be a need to use this particular animation. If they’re simply discussing the ID notion of irreducible complexity (the point this and similar works are usually used to illustrate), this animation is not necessary to do so–they could have done their own animation, or not used one at all. I’m not convinced this factor helps Expelled, but I’d need to see the use of the animation in the film to really assess it.

One commenter in the Pharyngula thread suggested that the commercial nature of the documentary eliminates the possibility of a fair use defense. Not at all. For instance, parodies, such as Two Live Crew’s parody of Roy Orbison’s “Pretty Woman”, are fully protected even though they are commercial; in that US Supreme Court case, the court made it crystal clear that commerciality does not eliminate the fair use defense. A moment’s thought makes the breadth of this clear: Virtually no news service or documentary or any other scholarly book could be produced if fair use did not apply even for commercial works.

The factual nature of the animation weighs towards a finding of fair use, as previously discussed; however, only somewhat, since the video is clearly a creative work, as demonstrated by the widespread acclaim of the animators’ work and vision.

The amount and substantiality of the amount taken — well, hard to say without seeing Expelled. I think it’s fair to say that one of the most striking parts of the animation is the giant walker along the DNA (my biologist partner would no doubt be annoyed with me for not being more precise), and it appears that’s what Expelled used in their film. Heart of the work? Maybe. “Heart of the work” is a doctrine that says that even if only a tiny portion of the work is taken, if it is the heart of the work, it can infringe copyright. Ford’s revelation about Nixon’s pardon in Ford’s biography was the heart of the work; the catchy bass line in David Bowie / Queen’s “Under Pressure” was the “heart of the work” and was infringed by Vanilla Ice’s song — what was it, “Ice Ice Baby”?

One Pharyngula commenter said something about the general rule is 30% — that’s absolutely wrong. There is no general rule for the courts about quantity; this factor, as all the factors in the fair use analysis, is fact-driven. Courts often say things like, “taking as much as is necessary for the purpose”. Sometimes taking the whole thing is necessary for the purpose; sometimes only a tiny amount is necessary.

Market value of the work is the fourth factor and often deemed the most important. This one depends on facts which I don’t have access to. The work is posted on the Internet, freely available for viewing. However, there’s a notice that states, “For educational use only. The use, duplication, or distribution of this material for any commercial purpose is strictly prohibited.” Expelled‘s filmmakers might claim “educational”, but actual educators have generally taken a conservative view of what “educational” means in the context of Section 107. “Nonprofit educational” use is the paradigmatic use, and “classroom copies” are particularly privileged. A for-profit documentary — well, that’s really pushing “educational” beyond where almost any copyright attorney would feel comfortable.

This whole analysis shifts, depending on whether Expelled used the original animation itself, or whether they recreated their own version of the animation. If they did their own version then the fair use analysis is going to focus solely on whether there was fair use of the copyrightable expression, and not on the uncopyrightable ideas that were copied. In other words, the idea of the walker moving along the DNA is certainly not copyrightable, and to the extent that the cellular reality actually looks like the animation, then any recreation is a recreation of reality and is not copyrightable. If it really looks like a giant gumby dragging a giant balloon taking measured steps along DNA, then any depiction would be expected to look like that. On the other hand, to the extent that the animation is a creative visualization of cellular actions, it is more creative. The choices of motion style, size, coloring, shape, angle, speed, etc., — anything that is part of the artistic, communicative, and expressive choices made by the animators — that is all copyrightable expression. So if Expelled recreated the animation or some portion of it, the fair use test will look closely at the use of the copyrightable expression only. (The originality analysis I started with above.) Was it necessary, for instance, that they copy that same angle and coloring? Was it sufficiently transformed if they changed the angle, coloring, and other represented cellular elements, and only copied, say, 20 seconds of the 3-minute original? Did they unnecessarily use the same or similar music (it appears so)? Etc. [Note, these are hypothetical questions; I don’t actually know the length of the videos, coloring, etc., because I haven’t seen Expelled.]

So, a plausible copyright claim for XVIVO, but a colorable fair use defense for Expelled, and particularly stronger if they recreated the video. This one is not a slam-dunk for either side.

Other claims:
XVIVO makes two other claims. VARA, and the DMCA.

VARA:
VARA, Section 106A, the “Visual Artists’ Rights Act”, is a lesser-known section of the Copyright Act. VARA is one of the few incursions of moral rights into US copyright law. It requires attribution for authors of visual works, and simultaneously states that attribution may not by given without permission for works not created by the author. It also prohibits “any intentional distortion, mutilation, or other modification of that work which would be prejudicial to [the author's] honor or reputation” which is defined as “any intentional distortion, mutilation, or modification of that work”, and it prevents destruction without notice of works of “recognized stature”.

If the XVIVO animation was copied (either copied directly, or re-made in a way that infringes the copyrights of XVIVO), then certainly attribution is required and there’s a VARA claim.

Possibly XVIVO also intends to claim a distortion, mutilation, or modification that is harmful to the author’s reputation: inclusion of the biology video in a creationist film could be argued as harmful to the author’s reputation. Unfortunately, I don’t think the distortion, mutilation or modification is what does it — it’s the association. That “sounds” more in the realm of trademark law: some sort of dilution, maybe, or false advertising. That feels like a weak claim to me, also, and it really doesn’t work in copyright. Moreover, the more the work is altered, the more likely it is fair use–so distortion, mutilation, or modification ultimately tends to help Expelled as much as it hurts them. At any rate, what appears to have happened is that Expelled clipped a segment from the XVIVO animation and either used its clip, or remade that portion of the video. This is certainly some kind of modification, but VARA does not eliminate fair use.

DMCA:
The DMCA claim is interesting. I see two possible claims.

The first is an anticircumvention claim, 17 USC 1201, but I’m not sure what the technical protection measure is that XVIVO might claim Expelled circumvented. The work is not available as a downloadable file (I don’t think), but I don’t see any particular protection preventing its capture from a stream in any of the usual methods. No password protection, no javascript disabling of downloads, no other protections. Is just streaming, alone, considered a technical protection measure? Hmm. So this claim feels sketchy to me, although possible depending on the files.

The second is 1202, the circumvention of copyright management information (“CMI”) — e.g., credits. This feels like a more viable claim to me, assuming Expelled did in fact use the XVIVO video itself. A recreation — even if it infringes XVIVO’s copyright — would not be a 1202 violation, since 1202 presumes copying of the original and removal of CMI from the original in the course of copying.

To sum up: A reasonable copyright claim, but a better tool for education
So — a proactive attempt by the forces of good to prevent the misuse of information by the forces of evil and stupidity. As with previous attempts to use intellectual property laws to prevent association of real science information with false intelligent design, the scientists are right to be upset. But using copyright law to prevent use of factual, scientific information ultimately does a disservice to the forces of good. Remember, information and truth is on our side. Restricting access to truthful information is their tactics. Supporting access to information is not only more consistent with scientists’ and educators’ general ethics, it is ultimately better tactically: The more information that people have access to, the more they have to consider, the more their interest will be piqued to learn more, and the more they will be equipped to think for themselves. The Expelled audience would benefit from seeing the video, particularly if they could see where it came from and who did it.

Moreover, the C&D does play right into the hands of their message: Attempts to stifle “the truth”. Yes, there have been numerous attempts by religious nuts to use copyright to stifle speech (including Kent Hovind, the Worldwide Church of God, the Scientologists, and numerous other wacky cults trying to prevent disclosure or criticism of their wacky doctrines). But surely it’s not a good idea for us to follow suit, especially against a film that alleges that these people are oppressed and silenced! (Indeed, it turns out that there is a long thread on a creationist blog where creationists William Dembski & others seem to agree with the substance of a copyright claim, and suggest it is a great marketing tactic.)

So what would I suggest? (1) Asking for licensing fees seems fine. (2) Demanding attribution is an excellent idea. Require attribution and a link to the XVIVO website, which could then include links to Expelled Exposed and basic information about evolution that refutes common misconceptions about evolution and creationist claims.