Expelled Plagiarizing Harvard?

_{Patrick

April 10, 2008

Expelled, Legal}

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Premise Media has just been slapped with a “cease and desist” letter from XVIVO, the group at Harvard that produced the video clips from which the still images at the top of this thread were taken. They are alleging copyright infringement (not to mention blatant plagiarism). The full text of the letter from XVIVO’s lawyers can be read at:

ERV: Expelled Epelled for Plagiarism
ERV: About That Cell Video in Expelled

The letter makes it clear that if the offending video clips are not removed from the film and all promotional materials by the opening date, immediate legal action will be taken to stop the release of the film.

Thanks to Allen MacNeill for bringing this accusation to our attention.

This accusation first became public when PZ Myers claimed that the Expelled movie used the Harvard “Inner Life of the Cell” animation. We’re currently investigating this claim and hopefully we’ll have more information in the next couple hours. But when asked about this, Jonathan Wells had this to say:

Expelled does NOT use the Harvard animation. The producers paid a professional to create a new animation that is more accurate than the Harvard one (based on current knowledge of cellular processes). Any similarities between the Expelled animation and the Harvard one are due to the fact that both animations depict many of the same processes.

Comments

The only way that XVIVO could claim copyright infringement is for them to acknowledge that their movie does not accurately represent the original. The latter argument would potentially damage the credibility of their original movie. A catch 22. Got them in a vise!poachy_{April 10, 2008
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Gentlemen, how do you get a new thread started on this site. I found the following article on livescience: "Shock: First Animal on Earth Was Surprisingly Complex" http://www.livescience.com/animals/080410-first-animal.html This needs a dialog!bFast_{April 10, 2008
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Before you think the producers of EXPELLED are idiots, you might think that they are chess players who have seen several moves ahead. Awesome!! That is really clever on their part to contrive the video so that they will get sued by Big Science. They have entrapped Harvard in a web of their own creation!poachy_{April 10, 2008
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I hate to spoil the fun here but Harvard University is the copyright holder named on the video. Watch the "super speed" version and see. The animation is credited to John Liebler/XVIVO. That's right there next to it on the Harvard site. A credit isn't a copyright. XVIVO has no standing. Harvard University does and I very seriously doubt they'll attach their name to legal action over this. Too bad. This could have been a category killer in free publicity.DaveScot_{April 10, 2008
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One thing is clear: whether or not the animation in the movie meets the criteria of "plagiarism," I'm sure the producers considered this issue before making the film public. Although XVIVO's suit couldn't have been predicted with certainty, the producers certainly must have considered the possibility. What a delicious irony the suit creates! If we simply "let the facts speak for themselves," they seem to support a design inference, and are seamlessly incorporated into an ID-friendly film. The animation makes the point--in spades--that ID isn't based on a "gaps" footing, but considers the evidence. I'm inclined to agree with Graceout that any damages or settlement costs Premise ends up paying to XVIVO are likely to be offset by the publicity the suit creates. I only hope the NYT picks it up! (Graceout, I hope U don't sue me for building a little on your idea! :-) )Lutepisc_{April 10, 2008
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Dr. WMaD, If you're right, then a brilliant play on their part.Atom_{April 10, 2008
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This is an intriguing challenge. If Expelled goes forward, XVIVO will have two options -- to press their case, which likely means very expensive and public court proceedings, or to decide that just because they barked, they don't have to bite. If they press their case, the Expelled attourneys would probably challenge XVIVO on the accuracy of their depiction. To the extent that their depiction is accurate, it becomes like two people photographing the same landmark, say niagra falls. If their depiction is accurate, the only copying that happened is XVIVO's copying of nature. The only way that XVIVO could claim copyright infringement is for them to acknowledge that their movie does not accurately represent the original. The latter argument would potentially damage the credibility of their original movie. A catch 22. However, there is another well recognized method of proving copyright infringement. I remember a famous case years ago between IBM and Phoenix. IBM was vigorously defending the copyright of the bios of the original PC. Phoenix got a programmer who certainly had not seen the original source code. They gave the programmer the "specs", and sequestered him. In this way they were able to prove that he had not copied IBM's code. In the same way, if XVIVO could demonstrate that the artists who produced the Expelled footage had first seen their footage, they would have a strong case. If Expelled could demonstrate that the artists had not seen XVIVO's footage, but gleaned their rendering from the source scientific research, XVIVO would be out of luck. Expelled my also have a case if XVIVO could reasonably have known of the infringing content significantly before sending the demand letter. It would seem near impossible for Expelled to remove the footage at this late date. Theaters are booked, film has probably already been produced -- maybe even mailed. I don't know if there would even be time to replace the footage with a blank screen or nasty notice. As far as the Write Brothers and patents go -- patents are a fundimentally different cup of tea than copyright. A patent is on a method. No proof that the infringer knew of the patent is required. If the infringer uses the same method as a patent, even if he adds steps, he is infringing.bFast_{April 10, 2008
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I've gotten to know the producers quite well. As far as I can tell, they made sure to budget for lawsuits. Also, I know for a fact that they have one of the best intellectual property attorneys in the business. I expect that the producers made their video close enough to the Harvard video to get tongues awagging (Headline: "Harvard University Seeks Injunction Against Ben Stein and EXPELLED" -- you think that might generate interest in the movie?), but different enough so that they are unexposed. It was a nice touch on the producer's part to use the same music as the XVIVO video. Presumably they got permission from the artist -- or is that another possible oversight to explore? But then again, one of the producers was for years in the music business. So most likely they're covered here as well. BOTTOM LINE: Before you think the producers of EXPELLED are idiots, you might think that they are chess players who have seen several moves ahead. For instance, have you ever thought who stood to gain the most from the Machine Video featured at UD a week ago? . . .William Dembski_{April 10, 2008
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Jehu wrote: "According to the letter on the ERV sight XVIVO is claimin that Expelled somehow stole the image through a computer generated means." Indeed that is the claim. But it appears to me that this would be quite impossible. Reading the various posts from those who appear to be defending the legal action, two things are apparent: They seem to ignorant of how such things could or could not be copied from a practical, technological viewpoint, and they seem to be Hell-bent to shut the movie down. They appear to be predisposed to play fast and loose with the word "copy" and to make ill-conceived comparisons which do not correspond with the reality of this situation. It's all very unfortunate.TRoutMac_{April 10, 2008
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BTW, I am a lawyer who does a fair amount of work in intellectual property, although copyright is really not my thing. Is the expelled animation still up anywhere? From reading the PZ Myers article and looking at the screenshots, it doesn't look like XVIVO has a case in my professional opinion. PZ Myer's claim of shared mistakes also looks very thin since the so-called "mistake" is really one of Myer's bias. Myers felt that the interactions were depicted to fluidly in the XVIVO animation and should have appeared more stochastic and jerky. Maybe there is more to it than what I am able to gleen at this point but I don't have much to go off.Jehu_{April 10, 2008
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Anyone else find it amusing that the second paragraph which was meant to start out with a lawyerly It has come to our attention that... Is instead It has come to our intention that Good one, Irons Peter whoever you are!DaveScot_{April 10, 2008
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According to the letter on the ERV sight XVIVO is claimin that Expelled somehow stole the image through a computer generated means. In other words they didn't render and animate it themselves. If that is true they shouldn't use the footage. If the gripe is just that there are similarities, and Expelled does in fact have models, they should change up some of the scenes so that it is not "substantially similar." What they don't have to change is the basic things they are depicting because that is scientific knowledge in the public domain. You can't copyright facts.Jehu_{April 10, 2008
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I haven't seen the videos in question yet (downloading now, I'm on dial-up). However I gather it's fairly evident that the XVIVO video was used as reference for the Expelled video. It's not that difficult to model from reference: Sharpie Model. I'm not sure it can be considered unethical. While the XVIVO video is certainly a creation of the developer, the subject matter is an artistic impression of a biological process. I've seen many images representative of atoms and molecules, DNA, etc., and they all are somewhat similar. I don't think that plagiarism has occurred in those cases, nor copyright infringement. Who owns the notion of multicolored spheres connected with cylinders in a double helix shape, slowly rotating and/or panning? Additionally, no original ideas were duplicated, nor any of the original work used. (If you compared the sundry pre-rendered animation and model files, I'm positive you wouldn't find much similarity in model topology nor animation timings, number and position of key frames, etc.) This seems apparent from the start. The above is my impression of a Sharpie. I don't own the idea of the Sharpie, but I "own" those pixels. Nothing prevents someone from producing a rendering of a Sharpe with similar placement and camera perspective, depth-of-field and lighting. I might not like it if they do, but there's nothing illegal or unethical about it, AFAICT. However I would only have cause for offense if someone used that very image without my permission. If it were, however, a model of a subject of my creation, to which I owned patents or copyrights, that would be another story. I'll reserve my own judgment until I've seen the videos in question, but would be interested in knowing if there's anything "owned" by XVIVO except for the video and its constituent files. What intellectual property is really in question that's within the content of the XVIVO video?Apollos_{April 10, 2008
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Andrea @54: See my comment 56.Atom_{April 10, 2008
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@Allen in 51: The videos are not the same. I mentioned earlier, the shots are different (from different angles), the panning is different, etc, which shows that the video was created independently. In your example, two thirds of the text would be the same and would be an identical copy. That is the difference: there is nothing in the Premise video that is an actual copy.Atom_{April 10, 2008
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After reading Andrea's comment (#19), has anyone else considered the possibilty that Expelled could use this for a publicity stunt? i.e. "Go ahead and sue! You'll just be making our point for us that you'll do anything to squelch ideas you don't support. And we 'prove' that 'our' video was 'designed' by us." (Or something like that.) Now I fully support copyright laws, and in fact, I would expect Expelled to pay any damages that could be proven. But, hey, that might be worth the price?Graceout_{April 10, 2008
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Ms. O'Leary: I am quite sure that if someone copied a book of yours, changing a few words and correcting a few adverbs, printed it in a different font, and claimed that whatever original idea you may have had was now in the public domain, you would argue differently. As for the Wright Brothers, they did in fact apply for a patent on their work (not on the idea of a flying machine, which of course had been around for centuries, but on the details of how to make one actually fly in a controlled fashion, IIRC), and won some patent infringement cases based on it.Andrea_{April 10, 2008
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So my question is, will the producers of “Expelled” cower to this silly threat, or will they thumb their noses and let the movie show? And when will we know that?
I think they'll show it anyway. I doubt XVIVO could win substantial damages for Premise independently making a (strikingly) similar video. It is like when Mad TV does spoof music videos; they slightly alter the melody and change enough things to legally protect themselves. I'd think it is the same here.Atom_{April 10, 2008
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because it is possible to use a video editing application and simply “doctor” the original a bit, change some colors, etc., which in my opinion, would be a copyright violation.
Agreed.Patrick_{April 10, 2008
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O'Leary wrote (in #48):
"Intellectual property law only protects the intellectual property created."
So, if somebody published a book entitled The Spritual Nervous System, and you discovered upon reading it that it had the same chapter titles, the same sequence of ideas, and the same text, but with every third word changed, you wouldn't consider this to be theft of your intellectual property?Allen_MacNeill_{April 10, 2008
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The XVIVO amination is a stylised representation of the molecular processes. A diagram. Tracing over a diagram and using different colours does not make it an original work. As has been mentioned, the animation is on the Internet and can be viewed - it is not being suppressed. That does not make it public domain and permit its use in a for profit movie. How similar is it? Horace_Worblehat_{April 10, 2008
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So my question is, will the producers of "Expelled" cower to this silly threat, or will they thumb their noses and let the movie show? And when will we know that? Naturally, these are rhetorical questions only… I don't expect that anyone here could answer authoritatively.TRoutMac_{April 10, 2008
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Way to take the high road, ftk. You'll probably say "just joking," but if I cared at all I'd expect an apology.Jack Krebs_{April 10, 2008
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Andrea writes, "There really isn’t much leeway there: it took XVIVO a large effort to make their movie, and a similar amount of effort would be expected from anyone trying to produce similar results independently. Anything else is copying." The first innovator always goes to much more trouble than the subsequent competition. Intellectual property law only protects the intellectual property created. There is, I am afraid, no compensation for the fact that others study the original innovation to build their own models - unless one counts the honour of being first. I suppose many unremembered people observed Wilbur and Orville Wrights' work and went away and built their own airplanes, without making all the Wrights' mistakes. That's life.O'Leary_{April 10, 2008
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Jack *is* a fascist... *snicker* [Don't ban me, Dave. I couldn't resist.]FtK_{April 10, 2008
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Andrea: No -- "friendly" as in friendly to the idea that we have souls. Dembski already has this pulled on him.wnelson_{April 10, 2008
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A possible explanation could be the producers of Expelled got a hold of these papers by either paying for them or have collected them through academic studies and forwarded them to their animation team to create the video. This sounds perfectly legal to me. Of course, if the Expelled people did and can document all the footwork from the evidence in the primary literature to the generation of the final product, then they are in the clear. As I said, it should be pretty straightforward: if the case goes to court, there should be piles and piles of notes, papers, files of intermediate production stages that will be subpoenaed, the computer animator(s) and cell biologist(s) Expelled employed will testify, etc. Neither the researchers nor animators want this in an audience-friendly format. Friendlier than freely available for anyone, you mean?Andrea_{April 10, 2008
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Guys! If Promise co-opted Harvard's research, then it's a done deal -- I'm sure if XVIVO wants more work from Harvard they'll do what they're told -- or maybe just score some points. If it was about the money, they'd be asking. But they're not. Neither the researchers nor animators want this in an audience-friendly format. Regardless, take the hit, rub some dirt on it, and get back in the game! By the time the next movie comes out, the complexities of what we know about the cell will likely have increased by an order of magnitude. Meanwhile Harvard will get a black mark for suppression -- and the public's understanding will react to that suppression -- if only viscerally. They can't win.wnelson_{April 10, 2008
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XVIVO uses LightWave, a commericial product anyone can buy and use. And one might expect that this package would produce similar looking models....but...and I have posted this in another thread. The producers would have to show in court all the intermediate modeling and animations steps leading up to the final clip, because it is possible to use a video editing application and simply "doctor" the original a bit, change some colors, etc., which in my opinion, would be a copyright violation.Helio_{April 10, 2008
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Re: Andrea(35) Correct me if I am wrong, the intellectual property you are referring to are scientific papers in academic journals. These journals are usually available for a fee, and are also made available in University libraries for free. Once published, they are on the open market (i.e. can be references in other papers, used for grounds for future research by another institution, etc.) A possible explanation could be the producers of Expelled got a hold of these papers by either paying for them or have collected them through academic studies and forwarded them to their animation team to create the video. This sounds perfectly legal to me. I have a collection of engineering journal articles that I use to do my job. No one has sued me for this. I can't think of one case in the engineering profession where this happened. If I can get paid to look up journal articles to use in my design for a client who then uses my design for profit, then using a journal article to create an animation to be used for profit is OK too.JJS P.Eng._{April 10, 2008
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