OK, Expelled… But Plagiarism Will Do That For You

Abbie Smith at ERV has the scoop on this: XVIVO has made the opening legal salvo with a cease-and-desist letter to Premise Media accusing them of copyright infringement concerning the animation showing the interior of a cell used in the film. They request that the disputed animation be removed from the “Expelled” film *before* it makes its commercial debut on April 18th.

Now, that’s a short schedule. Somebody’s going to be out a packet of change over this. It may not even be feasible for Premise Media to alter the film on that timetable and have their big opening, too. There’s speculation that Premise Media may say, ‘damn the lawyers, full steam ahead!’ and simply figure on writing off the financial end of this as a big loss, hoping that they’ll gain martyr cred by doing so. The thing about martyrs, though, is that they not only need to be oppressed, but they are supposed to somehow convey at least a dollop of righteousness along the way. Funny, though, how righteousness just doesn’t seem to be any part of the operating mindset behind the writing, production. or promotion of this film. Getting caught cheating doesn’t make you look like a martyr, it makes you look like a crook.

Hey, maybe Ben Stein will finally get to use Nixon’s most famous line that Ben Stein claims he, Ben Stein, didn’t write.

Update: If the “Expelled” folks think about this for more than five minutes or so, they will do everything in their power to comply with the XVIVO request, including screwing the distribution deal and holding off the premiere for another several months. Why?

Pause and consider.

“Expelled” is a production linked into the persecution stories at the heart of IDC. They have had months of discussions and correspondence with the principal figures of the IDC movement. They likely have recordings of discussions in meetings and other places where all these folks felt free to chat.

There is a serious line of inquiry as to whether there was collusion to infringe on the copyright of XVIVO.

Lawsuits come with the subpeona power of the courts for discovery. Depositions of witnesses are taken under oath. Cross-examination of witnesses is not restricted to a delimited field of questions; anything that could bear upon the credibility or trustworthiness of witnesses in court is fair game for inquiry. The court can compel answering awkward questions with contempt citations if needed.

If this goes to court, what witnesses can Premise Media put on the stand who *wouldn’t* potentially be tainted by the revelation that every single “persecution” story in it is overblown, misleading, or simply false in its particulars?

Premise Media could accomplish what outsiders never have hoped to do: bring about the complete public discrediting of the IDC movement in its most basic claims to personal integrity and suffering in the face of persecution. And it would be a completely self-inflicted wound. All Premise Media needs to do is blow off the XVIVO letter and continue with their opening schedule unaltered.

Wesley R. Elsberry

Falconer. Interdisciplinary researcher: biology and computer science. Data scientist in real estate and econometrics. Blogger. Speaker. Photographer. Husband. Christian. Activist.

24 thoughts on “OK, Expelled… But Plagiarism Will Do That For You

  • 2008/04/09 at 7:43 pm

    Wes although I am hopeful that this happens, don’t you think those guys read your page? I suppose they have lawyers. Man what a bunch of clowns.

  • 2008/04/09 at 8:51 pm

    Wesley, if you believe the second part why are you saying that here? Are you intending to give the DI and Ben Stein advice?

  • 2008/04/09 at 9:00 pm

    Conventional film is very easy to edit. Cut and tape! It would take a few minutes for each print and individual theaters can do it for them to distribute the work. Digital distribution is a separate issue, but I’m pretty sure most theaters have not switched to digital.

  • 2008/04/09 at 9:06 pm

    I have offered correction after correction to Bill Dembski over the years, and you might be surprised by how little notice he takes of even the clearest, simplest correction on easily documented issues of fact. I figure that the DI and other IDC folks have enough hubris to ignore just about any source of criticism, no matter how good it would be for them to pay attention.

    Being able to say “I told you so” is just the cherry on top.

  • 2008/04/09 at 11:52 pm

    Wes, I trust you will help in the case by recommending a strategy to squeeze the truth out of ‘Dempski‘. You could even give it a name. :-)

  • 2008/04/09 at 11:53 pm

    Dang, Wes. As you know, I sorely wished that the newly elected Dover School Board had sued the DI and the Thomas More Law Center to recover their 1 million dollars in lost legal fees.

    This might be the next chance.

  • 2008/04/10 at 1:23 am

    MattP says that it will be easy to edit the prints before distribution. Maybe, but they claim to be opening on 1000 screens. Since they are scheduled for two theaters in my smallish midwestern city, (about 250,000) they are probably telling the truth here.

    1000 prints are going to take a while to cut – and they’re going to have to patch around the holes too. Can’t have Ben Stein saying, “Here’s a video showing God’s handiwork in a cell,” and then cutting directly to Ben Stein saying, “Wasn’t that wonderful?” Even the fundamentalists will notice something is wrong.

  • 2008/04/10 at 8:42 am

    Y’know, a creationist lickspittle whose initials are “William Wallace” is advocating just that over on ERV, on the grounds that what the movie does is fair use.

  • 2008/04/10 at 8:54 am


    In all, compared to the number of people they have available to work on cutting the footage, it will be easy enough to comply with the letter assuming they can figure out something to patch it with.

    Ironically, I personally don’t see them having enough intelligence to do that despite their notions about intelligence and design.

  • 2008/04/10 at 9:17 am

    Due to posting delays I should make that clear: “William Wallace” is advocating that Rampant Productions ignore the cease-and-desist letter and go ahead with showing the movie.

  • 2008/04/10 at 9:23 am

    The reaction of the Dishonesty Institute will be interesting. When Dembski was smacked down for using the video, the DI responded with merely a muted Cain defense: “Am I my brother’s keeper? We can’t possibly keep track of what all 40 Fellows are doing all the time.” Obviously the DI feared possible vicarious or contributory liability for Dembski’s actions.

    As Wesley points out, the DI undoubtedly has many communications with the Expelled people that mention the video. They would therefore exert pressure on the producers to comply with the cease-and-desist letter. This would avoid discovery of these documents during a trial.

    As to flushing out other factual distortions in the movie, good luck. If the producers comply, there is no trial and no discovery. Even if there is a trial, discovery would be limited to documents pertinent to the copyright-infringement issue. Although it’s possible that infringement-related documents might also mention these other matters, this would be serendipitous.

    Another embarrassment to the movie might be to investigate the licensing status of the background music and the images. If they stole one part, maybe they stole others. Probably even some of the WWII images are still in copyright. ASCAP, BME, and RIAA can be ferocious about enforcing copyrights on music.

  • 2008/04/10 at 9:30 am

    Another issue that militates against going ahead with the movie as is, including the video: Not only would the producers be liable for copyright infringement, the theaters that showed it would themselves be liable for infringing the “public display” right of copyright. Any theater that knows about the infringement would refuse to show the movie.

  • 2008/04/10 at 9:30 am

    Premise can blow this off if they choose to, but what about the theaters that show the film? are there any theaters not owned by major studios or major corporations?

    The fines for copyright violation can reach kilobucks for each instance.

  • 2008/04/10 at 1:05 pm

    Can’t have Ben Stein saying, “Here’s a video showing God’s handiwork in a cell,” and then cutting directly to Ben Stein saying, “Wasn’t that wonderful?” Even the fundamentalists will notice something is wrong.

    Nah, they’ll just imagine they saw it — because someone they were told to trust said they just saw it — and the rest of us will never be able to prove they didn’t see it.

  • 2008/04/10 at 1:39 pm

    My best guess is that they will just cut out the XVIVO segment. Assuming there is a copyright issue.

    Does anyone think their target audience knows the difference between a ribosome and an actin filament? Or cares. They could just splice in some more Nazis or a cartoon of scientists beating puppies to death. Those would fit better with the tone of the film.

    Doesn’t look like money will be an issue. They are advertising this heavily with lots of web advertising, junk mail advertising, and they have a huge crew of humanoid spambots crawling the nets.

    They couldn’t care less if they make any money. There seems to be big bucks behind this propaganda effort, paying to get the message out.

  • 2008/04/10 at 1:47 pm

    Even the fundamentalists will notice something is wrong.

    You’re giving the fundies too much credit but I don’t mean to nitpick your observation otherwise. This is interesting stuff. I’m betting they don’t cut the material and may rightly or wrongly claim ‘fair misuse’ of same.

    Early distribution appears to be targeted to areas with the highest hickability factor (HHF) but is nowhere as large as they would like to portray. This movie is DOA. Plagiarism didn’t kill it. Lack of credibility, overuse of tired Nazi imagery and a heavy reliance on a heavily (and again recently) discredited creationist movement seems to have been enough to do the poor bastard in.

    Charges for ‘murder of a movie’ have subsequently been dropped against Defendant Plagarism.


  • 2008/04/10 at 3:10 pm

    Well yeah, depending on the context, getting a “clean” edit could be difficult with just a splicing tool. I sure hope this is very expensive and time consuming for them, but if they do decide just to cut and enlist the local theaters to the do the work, then the number of screens that itis releasing on is irrelevant.

  • 2008/04/11 at 9:57 am

    Not to mention that the first part of the discovery process would be subpoenas to find out who was contracted to produce the new animation, what their instructions were, and what resource materials were provided to them by the movie producers. That information alone should be sufficient to prove plagiarism.

  • 2008/04/11 at 10:54 am

    This is true, chezjake, _if_ there is a discovery process. There will be a discovery process only if the producers do not remove the segment and if a trial then follows.

    There are several reasons the producers would not want a trial, even if they have lots of money to fight and to pay damages. (1) Many theaters would refuse to show the film, because they don’t want to get whacked with damages themselves. (2) The Discovery Institute would no doubt get dragged in via e-mails; they might face damages through vicarious or contributory liability. (3) The studio that did the knock-off would exert pressure, because they could also be liable, if they were given the XVIVO video and told to produce “something similar.”

    It is possible, of course, that the producers may reach a licensing deal with XVIVO to let the segment stay. Let’s pray (or hope, depending on you persuasion :-) that XVIVO refuses to license.

  • 2008/04/12 at 9:39 am

    Excellent post about the reasons Premise Media should clean up its act. My question is, why are you giving free advice to the bad guys? I think it’d be GREAT to see these clown squirming in court, preferably on Court TV and YouTube for all time. Serves ’em right.

  • 2008/04/12 at 10:11 am

    I give the analysis because it makes things clearer for those reading up on this, because IDC advocates ignore my advice anyway, and because the alternatives don’t really give the “Expelled” folks a win whatever way they go.

  • 2008/04/12 at 12:02 pm

    Re Wes’s update: Unfortunately, depositions, discovery, and cross-examination can be limited to the matter of the suit—whether or not the copyright was infringed. Although credibility questions might collaterally bring in some evidence of the movie’s other lies or distortions, this would be a lucky break. And, of course the Premise Media attorneys will resist mightily any effort to bring in material concerning any other aspects of “Expelled.”

    My biggest concern right now is ownership. If Harvard owns the copyright outright, then XVIVO has no further standing to sue on it. Does anyone have any first-hand knowledge concerning this aspect?

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