How fares the Expelled film? - still No. 5

If you are following the saga of the Expelled film (currently #5 in political documentaries and grossing $7,274,318), you may well wonder which documentaries are ahead of Expelled? Here they are:

1 Fahrenheit 9/11 $119,194,771 6/23/04
2 Sicko $24,540,079 6/22/07
3 An Inconvenient Truth $24,146,161 5/24/06
4 Bowling for Columbine $21,576,018 10/11/02
5 Expelled $7,274,318 4/18/08

Fahrenheit 9/11 is far and away the top performer, but has been out a lot longer than all but one of the others (#4).

A number of documentaries released this year were released in many fewer theatres and performed much more poorly, notably, #21, Where in the World Is Osama Bin Laden? (4/18/08), which grossed $323,310. That one's notable because it opened in 102 theatres.

But then, in a world that has learned to put up with precautions against terrorism, I am not sure how many people care any more where in the world Osama bin Laden is, as long as he stays there

The question mark on the horizon is Yoko Ono's lawsuit regarding the use of brief excerpts of lyrics from John Lennon's Imagine, with the prospect of shutting down official showings. If Expelled becomes an underground film, it will be much more widely viewed, but numbers will be problematic.

Meanwhile, Stanford's Fair Use project has rushed into the fray to defend the Expelled filmmakers:

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Premise Media contends it has the right to use the song under the fair use doctrine, which among other things permits the use of copyrighted material for the purpose of comment, criticism, and discussion.

“The right to quote from copyrighted works in order to criticize them and discuss the views they may represent lies at the heart of the fair use doctrine,” said Anthony Falzone, executive director of the Fair Use Project. “These rights are under attack here, and we plan to defend them.”

Falzone will serve as counsel on the case along with Stanford Law colleagues Julie A. Ahrens and Brandy Karl. The Stanford team will be joined by Roy Hardin and April Terry, partners at the Dallas office of Locke Lord Bissell & Liddell LLP.
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Incidentally, both friends and foes of the thesis of Expelled have had difficulty with Ono's reluctance to adopt a business-like approach to the use of her late husband John Lennon's music.

Here is a comment from a campus librarian on the complexities of copyright where documentaries are concerned:

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It’s possible the filmmakers could have avoided the problem by getting permission. It’s also possible and given the circumstances looks to me very likely that permission would not have been granted. But even apart from that, the point of the Fair Use Exemption is to allow you and me to use copyrighted material WITHOUT the need to get permission. The contention is that Fair Use already gives the filmmakers permission. This is what Stanford FUP is going to try to get the courts to agree to. I for one hope they win this case, it will be a tremendous benefit to all the rest of us who want and need to use copyrighted material for scholarship, criticism, etc. The film, music and publishing industries have been working very hard and succeeding at blocking our access to information.

I’m inclined to think that due to the pervasive capitalistic nature of our society (“our” meaning the U.S.) our perspective on copyright has become severely skewed. It’s my understanding that in actuality before the copyright law, it was accepted that information, creative works, etc. belong to everyone. The copyright law was originally designed to encourage people to pursue scholarship, art, invention, etc. by giving the scholar, artist, inventor, etc. a limited opportunity to profit from his/her creations. The copyright law was not written to allow us to access created works; it was written to allow authors and artists to profit from their work for a limited time. Creativity would flourish and we would all benefit. Fair Use is intended to ensure that the public is able to use all those things that are created while at the same time fostering continued creativity by allowing the creator to profit from his/her work. There needs to be a turning back of the perspective on copyright law to its original intention. If Stanford wins this case, we will have taken one giant step forward (or given my premise would that actually be backward?).

Miss Janet L. Tillman, MLS
Reference Librarian
Institutional Copyright Specialist
The Master's College
21726 Placerita Cnyn. Rd.
Santa Clarita CA 91321-1235
(800)568-6248
t: (661)362-2201 ext. 3422
f: (661)222-9159
jtillman@masters.edu
www.masters.edu/library
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My own take on the subject is that documentarists have a more difficult problem with copyright issues than the makers of fictional films because they don't have as much leeway about what they are going to use. For example, if I wanted to make a documentary about the famous Twinkies defense in a murder case, I would pretty much have to drag in the name of the snack called Twinkies. I can't just decide to use Cheerios instead, right? Stay tuned.