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Saturday, April 12, 2008

Expelled: Intellectual property vs. intellectual territorialism

Because I was working at Design of Life blog yesterday, I did not get a chance to cover the Expelled "plagiarism" flap. The accusation was that Expelled was using clips from a film of cellular machines produced by XVIVO for Harvard.

I figured I would catch up with the flap if it grew into an uproar, but it appears to be dying down now. Even PZ Myers has rethought his claim in the matter ("I was wrong" - accessed 10:17 am EST).

I was a permissions editor years ago, so here are some thoughts on the subject from that perspective:

- The Expelled team knew perfectly well that some would try legal action to stop the release of the film. A studio contact told me as much last summer, in response to a message from an anonymous "well-wisher":

"I do hopw that the makers of "Expelled" are aware of the lawsuits launched against the makers of "What the Bleep...", given that they obtained their interviews with several biologists unders false pretenses."

I asked a contact at the studio, and he tapped back,

"No worries. Reality is, in the U.S. you can sue a baloney sandwich if you want."


So I assume that, as professionals, the Expelled team retains legal counsel expert in the area and budgets for frivolous suits.
It all goes into the price of your ticket.

- I have no particular reason to doubt that the Expelled guys hired their own animator and produced cell animations from scratch. It is not a low budget production, and intellectual property issues are a foreseeable risk.

- If Expelled is focusing on the same cellular machinery as XVIVO, similarities may be expected. When I was a textbook editor, we frequently accused our competitors of copying us and they accused us of copying them. Of course we all denied it, but the truth was somewhere in the middle - and not actionable.

The first thing we would do when starting a project was to get hold of the competitors' texts, see what they were doing, identify strengths and weaknesses, note how the market reacted, and decide where we could improve on them. They did not have a case against us because we did not actually copy. We always did our own work from scratch, using different writers, layouts, angles, et cetera. (We had a budget for that.) And, of course, the competitors were taking apart our texts too, doing the same thing.

- Similar mistakes are not necessarily proof of copying, as claimed in the Expelled XVIVO case. In my experience, artists tend to make roughly similar errors when dealing with technical material, as well as errors of their personal invention.

- lastly, people who have worked hard on a long project become fiercely proprietary and territorial, and are apt to see copying where it has not occurred. I know because I did it myself on occasion, but wiser heads restrained me. And I in turn restrained others. Lots of things can be owned, but not ideas.

I wonder what the next flap will be. Expelled's foes had better hurry; the US release is less than a week away ...

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