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Tuesday, June 3, 2008 | Reason : In the News | print version Print | Comments

Document Ben Stein 1, Yoko Ono 0 in 'Expelled' copyright spat

by Ars Technica

Thanks to Rodrigo Vieira for the link.

Ben Stein 1, Yoko Ono 0 in "Expelled" copyright spat
By Timothy B. Lee

A New York judge today dealt a serious blow to the widow and children of John Lennon, who are seeking to force the removal of the John Lennon song "Imagine" from a controversial film about intelligent design, creationism's PR-savvy cousin. Expelled: No Intelligence Allowed argues that advocates of the theory of intelligent design face persecution in the academy. Judge Sidney H. Stein rejected the plaintiff's request for an injunction against further distribution of the film, finding that the makers of Expelled were likely to prevail in their argument that the use of "Imagine" was fair use under copyright law.

he controversy centers around a segment about an hour into the film. Science advocate PZ Myers argues that greater science literacy would "lead to the erosion of religion," and expresses the hope that religion would "slowly fade away." The narrator, Ben Stein, asserts that Myers' ideas aren't original. Rather, he is "merely lifting a page out of John Lennon's songbook."

The viewer is then treated to a clip from John Lennon's "Imagine," with the lyrics "Nothing to kill or die for/And no religion too." The music is accompanied by black-and-white footage "of a military parade, which gives way to a close up of Joseph Stalin waving." Next, the film cuts to a guest who argues that there is a connection between "transcendental values" and "what human beings permit themselves to do one to the other." Evidently, religion is the only thing standing between us and Stalinist dictatorship.

Judge Stein's task wasn't to critique the dubious logic of this segment, but to evaluate the narrower question of whether the film's use of "Imagine" is fair under copyright law. He noted that the film was focused on a subject of public interest, and that the film was commenting on Lennon's anti-religious message. The excerpting of copyrighted works for purpose of "comment and criticism" is explicitly protected by the Copyright Act, and Judge Stein ruled that this provision applied in this case.

The decision quotes extensively from Bill Graham Archives v. Dorling Kindersley, a 2006 decision that allowed the reprinting of reduced-size versions of several historical posters used in a coffee-table book about the Grateful Dead. In that case, as in this one, the alleged infringers had used the works in a commercial product, but the US Court of Appeals for the Second Circuit found that "courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest." Whatever the merits of its argument, Expelled is clearly commentary on an issue of public concern, and the use of "Imagine" was central to its argument. Those facts weighed heavily in favor of a finding of fair use.

Stein and company were defended by lawyers from Stanford's Fair Use Project. In a blog post announcing their decision to take the case, executive director Anthony Falzone wrote that "The right to quote from copyrighted works in order to criticize them and discuss the views they represent lies at the heart of the fair use doctrine," and argued that Ono's actions threaten free speech.

We've noted before that intelligent design is not a scientific theory so much as an attempt to create the appearance of controversy using flashy PR tactics. Indeed, the advocates of intelligent design theory have explicitly advocated that schools "teach the controversy," which gives schoolchildren the mistaken impression that there is widespread controversy regarding the merits of evolution within the academy. Expelled in particular has advanced this narrative by featuring scientists who supposedly faced retaliation for their support of intelligent design. (The film greatly exaggerates the persecution of intelligent design advocates)

It is, therefore, unfortunate that Lennon's heirs sought to use copyright law to squelch criticism of Lennon's lyrics. No matter how dishonest Stein and company's arguments may be, they have the right to make them, and copyright must give way to the First Amendment. Ono's aggressive tactics will give Stein and company an undeserved PR victory, allowing them to play the beleaguered underdogs fighting the "Darwinist" establishment. The way to counter Expelled is with logic and evidence, of which there's an ample supply. Overzealous application of copyright law is counterproductive.

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1. Comment #188050 by HitbLade on June 3, 2008 at 7:19 am

FIRST POST!

NOOOOOOO! i dun even like yoko ono, but Stein is the greater of... one evil and a woman...

Other Comments by HitbLade

2. Comment #188051 by Bruno on June 3, 2008 at 7:19 am

Article makes a good point, but I was still hoping that Yoko's legal team would throw a wrench into the planned DVD release. Oh well.

Other Comments by Bruno

3. Comment #188064 by Fanusi Khiyal on June 3, 2008 at 7:30 am

I wonder whether this falls under the 'fair use' proviso about intellectual property?

Whatever - Ben Stein is just making a fool of himself. I sometimes think that this sort of controlled implosion in the media is the best way of sorting out creationist ninnies.

Other Comments by Fanusi Khiyal

4. Comment #188078 by irate_atheist on June 3, 2008 at 7:48 am

 avatarThe Judge is clearly a twat.

You use my image or my intellectual property in your film, you'd better get my permission for it.

Other Comments by irate_atheist

5. Comment #188081 by epeeist on June 3, 2008 at 7:52 am

 avatarHow much would it have cost to put together the movie and distribute it. The takings so far are around $7.6 million (http://www.boxofficemojo.com/movies/?page=main&id=expelled.htm) would they have covered their costs with this?

Other Comments by epeeist

6. Comment #188092 by Fanusi Khiyal on June 3, 2008 at 8:05 am

You use my image or my intellectual property in your film, you'd better get my permission for it.


Again, irate, the question is: how much was used, and does it fall under the 'fair use' guidelines? To give a parallel, if one were to counter by making a film attacking the IDers and quote sections of their books, we should be allowed to do so.

Other Comments by Fanusi Khiyal

7. Comment #188095 by Border Collie on June 3, 2008 at 8:11 am

The way to fight Expelled is to not spend even one red cent to go see it ... ever. If you spend money to go see this movie, you're validating it, no matter how negative your opinion of it.

Other Comments by Border Collie

8. Comment #188098 by Santi Tafarella on June 3, 2008 at 8:17 am

When all of us argued and carried on about this last month I said that the way "Expelled" used "Imagine" was fair use and, though we don't like the film's content, it would be unfortunate if the court ruled against the film. We, as agnostics/atheists like to make films too, and "quote" religious images and music and voices to put commentary around. In an electronic age, you need to be able to take snippets from others and use them, otherwise you cannot have a vigorous debate. This is a victory for free speech in an electronic age. A loss here would have meant that corporations and megachurches could censor films by suing filmmakers that mock them or use images from their buildings.

Other Comments by Santi Tafarella

9. Comment #188104 by clunkclickeverytrip on June 3, 2008 at 8:28 am

Judge Stein, Ben Stein - wait a minute.....?!

Other Comments by clunkclickeverytrip

10. Comment #188113 by Santi Tafarella on June 3, 2008 at 8:32 am

Border Collie:

I strongly disagree with you. There are many reasons to a see a film. One is to gain information. I intend to purchase the film when it comes out on DVD because I am interested in propaganda studies. I don't like Leni Reifenstahl's politics in the "Triumph of the Will"--but I have it on DVD. You need to know your opposition, and learn from what they are doing. In this case, the film's financial success will not be made or broken by a small group of agnostics/atheists who might be curious to see the film, but by the large group of fundamentalist Christians who might (or might not) flock to it. I hope that agnostics/atheists don't get into a group mentality similar to the far right regarding a Michael Moore film. Get out of your moral bubble of rectitude and see what the other side is saying.

Other Comments by Santi Tafarella

11. Comment #188121 by mordacious1 on June 3, 2008 at 8:42 am

I would hope Yoko let's this one rest. Controversy always sells crap. This piece of crap will die a quick death, if it's off the headlines. Only the "choir" will go to see it.
Imagine no Ben Stein...

Yes, Judge Stein, Ben's illegitimate brother. His mother got around you know (oh just kidding).

Other Comments by mordacious1

12. Comment #188122 by DamnDirtyApe on June 3, 2008 at 8:43 am

 avatarCrap.

Still, his association of a peace song with oppressive war imagery only shows how dumb he is.

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13. Comment #188123 by Jesse. on June 3, 2008 at 8:44 am

I thought the lawsuit for the shameless copying of that fragment out off 'the inner life of the cell' looked far more promising than this one, yet I haven't heard anything about that for a long time. Does anyone know more about that?

Other Comments by Jesse.

14. Comment #188127 by mordacious1 on June 3, 2008 at 8:48 am

Border

You have a good reason for paying to see this crap. I've been wrestling with it myself. I don't want to give them money, but every time I criticize the "film" to the xians, they say: "Have you even seen the movie?". They have a point. I'm hoping one of my xian friends will rent it and loan it to me. I AM willing to pay for the barf bags myself.

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15. Comment #188149 by rod-the-farmer on June 3, 2008 at 9:21 am

 avatarI would like an explanation, in light of this decision, how the Kent Hovind complaints about people using parts of his videos, were accepted by those who hosted them. I believe they prevented people from accessing them ?

Other Comments by rod-the-farmer

16. Comment #188151 by davemei on June 3, 2008 at 9:24 am

 avatar
You have a good reason for paying to see this crap. I've been wrestling with it myself. I don't want to give them money, but every time I criticize the "film" to the xians, they say: "Have you even seen the movie?". They have a point. I'm hoping one of my xian friends will rent it and loan it to me. I AM willing to pay for the barf bags myself.


Ermm....you could always...download it. =P

Other Comments by davemei

17. Comment #188155 by Dhamma on June 3, 2008 at 9:29 am

 avatarepeeist: According to Wikipedia, the budget was $3.5 million. http://en.wikipedia.org/wiki/Expelled

Btw, if that's the total cost of the film, then why can't "we" make one as well? I had in mind Dawkins said it would probably cost more than $10 million, maybe he was wrong (or maybe my memory just fails me again). I really hope they'll make one as it will be far more convincing than this one is(according to what I've heard).

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18. Comment #188156 by epeeist on June 3, 2008 at 9:30 am

 avatarComment #188151 by davemei
Ermm....you could always...download it. =P
It would seem that nobody could even raise the effort to take a webcam of it and put the torrent on the "Pirate Bay".

Other Comments by epeeist

19. Comment #188162 by epeeist on June 3, 2008 at 9:36 am

 avatarComment #188155 by Dhamma
According to Wikipedia, the budget was $3.5 million. http://en.wikipedia.org/wiki/Expelled


Btw, if that's the total cost of the film, then why can't "we" make one as well? Not sure what the budget actually entails. Does it include things like publicity for instance, or distribution costs.

If it did cost $3.5 million and it took $7.6 million then how much would be left over to pay the film makers after the distributors and theatres took their cut?

At best it looks as though it might have broken even. I suspect they hope to make money on the DVD release.

Other Comments by epeeist

20. Comment #188164 by Tack on June 3, 2008 at 9:40 am

I haven't seen Expelled (and won't until I can find a way to see it without paying money), but as much contempt as I have for the film and its thesis, if the song was used as described in the article, I agree with the judge's decision.

"Intellectual Property" is being taken much too far nowadays, and fair use (or fair dealing for us Canadians) is one of the few remaining bastions. We must fight for it even when it's used to promote a message we oppose.

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21. Comment #188166 by brainsys on June 3, 2008 at 9:44 am

Agree with you Tack about not paying on principle. Does anyone have any news of friendly prolyetising Christians offering free showings in London?

After all if it had real good evidence I could be convinced.

Other Comments by brainsys

22. Comment #188179 by happyatheist on June 3, 2008 at 10:05 am

I still wouldn't PAY for the film...just like I don't BUY religious texts...I borrow them from the library or from religious friends...read them and return them...My books by Dawkins and Dennett, et al., take center stage. :)...There are other ways of seeing the film without putting money into the pockets of Ben Stein and those who helped make the propaganda film...Like someone suggested...download it...or wait for it to be posted on YouTube. OR...someone here could "take one for the team."...Whichever one of you buys the film...post it somewhere for the rest of us to view. LOL!

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23. Comment #188183 by Steven Mading on June 3, 2008 at 10:14 am

The filmmakers are guilty of slander with their unabashed lying about scientists, and the manner in which they used the song was quite dishonest (by implying that John Lennon had no problem with Stalinism, when his song was against THAT as well as religion). However, despite that fact, I have to agree that their use of "Imagine" in the fashion it's used does count as fair use.

I just wish someone would sue them for slander, rather than for copyright infringement.

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24. Comment #188184 by Lil_Xunzian on June 3, 2008 at 10:16 am

Well, at least the lawsuit crippled Expelled theater debut.

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25. Comment #188188 by Cairnarvon on June 3, 2008 at 10:20 am

If it did cost $3.5 million and it took $7.6 million then how much would be left over to pay the film makers after the distributors and theatres took their cut?

At best it looks as though it might have broken even. I suspect they hope to make money on the DVD release.

Considering that they were paying people to go see it (not sure if they're still doing that), I doubt they even broke even.
As for DVDs, I predict most DVDs that wind up in the wild will be "promotional copies" the Expelled gang hands out themselves, so there won't be much in the way of profit there either.

As for the Yoko Ono lawsuit, though, I feel compelled to side with Expelled here. It sounds like it was indeed fair (if retarded) use, and by rights Imagine should have been out of copyright for years anyway.

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26. Comment #188190 by mordacious1 on June 3, 2008 at 10:22 am

Yes, what one should do, is post expelled on line as a new documentary about expelled. Intro: The following is a piece of shit, show the movie, conclusion: See what I mean?

This way you wouldn't be infringing on their copyright, because their "film" would be integral to your documentary. Then cite Judge Stein's ruling.

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27. Comment #188214 by King of NH on June 3, 2008 at 11:18 am

 avatarMaybe we, as atheists, should start to market the film. Once we build it up as the greatest propaganda for atheists EVER, the churches will burn every copy without ever looking any deeper. Let their own dogmatic paranoia work against them.

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28. Comment #188224 by Chris Davis on June 3, 2008 at 11:43 am

 avatarIt's trivial, but still a revolting development.

I feel like setting up a webRing, consisting of a hundred or so separate pages, each showing 2 separate, sequential minutes of this silly film under 'fair use'...

CD

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29. Comment #188245 by the great teapot on June 3, 2008 at 12:15 pm

Does free speech include free music.
Sure they could quote the words, but how does free speech allow them to play the music as well.
Constitution my arse.

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30. Comment #188253 by Chun on June 3, 2008 at 1:06 pm

I am no fan of copyright law in general -- and although it pains me to see Stein win this one, I'm actually glad he did.

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31. Comment #188255 by adonais on June 3, 2008 at 1:22 pm

 avatar
He noted that the film was focused on a subject of public interest, and that the film was commenting on Lennon's anti-religious message.

Really? (boldface added by me)

Now, I haven't seen the film, but I was under the impression that it was supposedly commenting on the anti-religious messages from contemporary ID opponents. Were Lennon's views a topic in any part of the movie? Did the movie actually comment on Lennon's views? Can someone enlighten me.

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32. Comment #188259 by stephenray on June 3, 2008 at 2:08 pm

It seems to me that the analysis doesn't go far enough. (Note: I don't know US law very well.)

But isn't this the crucial thing: it was John Lennon's own creative and intellectual efforts that made the song 'Imagine' what it is. It is precisely the attraction of the song and the lyrics - for which he is solely responsible - that has made the song so powerful as an exploration of certain modern issues.

It is that factor which should give the owners of the copyright the opportunity to benefit from and control the use of the song.

I accept that you can quote the lyrics or play a clip from the song to critique the song or the lyrics or to make a point about the song or the era when it was written or John Lennon but if you use it as background for some other artistic or political endeavour reflecting on the subject of the song then you are seeking to benefit from precisely that quality which makes the song valuable to the copyright owner.

So you ought to pay for it, and should require permission of the owner beforehand.

It isn't an issue of free speech anyway; nobody's trying to say Stein and his cronies can't make the points that they want to make. It's a question of what they use and how they make the point. If they refused to pay for the hire of the cameras no-one would claim that the hire firm was infringing their free speech by repossessing their equipment and preventing the film from going ahead. Stein'd have to make his point by writing a book or getting on talk radio or whatever.

Same same with the song. Not using 'Imagine' doesn't stop him from making the film, even, just that he has to find some other backing music for 10 seconds.

Hopefully better lawyers will make the point if Ono appeals.

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33. Comment #188266 by Garnok on June 3, 2008 at 2:42 pm

adonais said:
Did the movie actually comment on [John] Lennon's views? Can someone enlighten me.


I think the problem here is that, combined with the Stalin images and such, he was probably confusing John Lennon with Vladimir Lenin.

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34. Comment #188269 by Roland32 on June 3, 2008 at 3:02 pm

I agree with the decision, regardless of the propaganda film behind it. Fair use applies imo.

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35. Comment #188270 by mcmatz on June 3, 2008 at 3:03 pm

I agree with stephenray's comment:
"I accept that you can quote the lyrics or play a clip from the song to critique the song or the lyrics or to make a point about the song or the era when it was written or John Lennon but if you use it as background for some other artistic or political endeavour reflecting on the subject of the song then you are seeking to benefit from precisely that quality which makes the song valuable to the copyright owner."

The usage certainly implied a link between Lennon and soviet communism/all things evil and not a comment on any link between PZ's quote about science literacy leading to the erosion of religious beliefs.

Perhaps an approach like the usage was libel/slander/defamation of character type thing would fare better.

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36. Comment #188272 by Skep on June 3, 2008 at 3:12 pm

Comment #188078 by irate_atheist on June 3, 2008 at 7:48 am
The Judge is clearly a twat.

You use my image or my intellectual property in your film, you'd better get my permission for it.


Really? Whose photo are you using as your avatar? Could it be a stolen photo of Dougal from the Father Ted sitcom. Did you "get [their] permission for it?"

That "twat" judge is saving your butt from a copyright lawsuit. You should think your position vis-a-vis copyright through before spouting off like a clueless hypocrite.

Without fair use or de minimus use even a trivial copyright violation like your stolen avatar photo are actionable copyright violations. This ruing is in **your** favor even if you have yet to realize it. You probably use your fair use rights every day, from quoting text in a blog forum to format shifting to put your CDs on your iPod.

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37. Comment #188274 by notsobad on June 3, 2008 at 3:31 pm

 avatarSkep,
fair use decisions also depend on whether the artwork was used commercially or not. Also, his avatar is small size, which diminishes the use.

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38. Comment #188275 by Skep on June 3, 2008 at 3:41 pm

"Skep,
fair use decisions also depend on whether the artwork was used commercially or not. Also, his avatar is small size, which diminishes the use. "

Indeed, but **Fair Use** it is and without fair use, strong fair use, he would be in clear copyright violation.


Now, as to size. 15 seconds of a song is a short clip, but enough for the producers to contrast the song with their classless imagery--which is very much commentary. It makes a strong (and erroneous) statement--which is why Yoko objects to it so much.

Fair Use is complex and amorphous. Commercial or non commercial is not a sole factor, nor is this entirely a non commercial website site. You can see numerous commercial advertisements supporting the site. And, while the avatar image is small, it is also complete and not a small portion of the image. So strong fair use is only of benefit to " irate_atheist," who, perhaps, should spend more time thinking and less time being thoughtlessly irate.

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39. Comment #188286 by MorituriMax on June 3, 2008 at 6:27 pm

 avatarDhamma, it probably WOULD have cost 10 million if Expelled had actually licensed such material as Imagine and the XVIVO animation from Harvard.. why spend money on the material in the film when you can just steal it.

My hope now is that XVIVO will nail em for their stealing the animation and claiming they made it. I wonder, is this anything like Of Pandas and People, where they just changed all references of "creationism" to "intelligent design?"

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40. Comment #188293 by RightWingAtheist on June 3, 2008 at 7:32 pm

 avatarI can't be 100% sure without seeing the movie, but it doesn't sound much like the movie is criticizing the song. It sounds like they just used it as background music for their criticism of science. The judge seems to have been stretching for an argument in favor of the movie.

Other Comments by RightWingAtheist

41. Comment #188300 by Thor'Ungal on June 3, 2008 at 8:09 pm

 avatarI would have to agree. As odious as his movie is designing laws that would exclude this kind of thing would also prevent our own criticisms.

This is like the youtube flagging campaigns by Muslims, Atheists even defended despised Christian fundamentalists for their right to air a view.

Protecting free speech is about protecting the views that are unpopular, popular views don't need protecting.

I am reminded of a modern day proverb about tearing down all the laws in England to get at the devil. What happens when he turns on you, with all the laws torn down where will you hide.

Other Comments by Thor'Ungal

42. Comment #188315 by acs on June 3, 2008 at 9:29 pm

I am an intellectual property lawyer atheist.

Unfortunately under the wide range of the Fair Use provisions in the United States, the judge is correct. The use of material in a sequence which is 'fair use' is not copyright infringement. Furthermore, a 'fair use' would easily be shown in this matter because the song in issue is famous and, accordingly, can be used to draw attention to the arguments at hand.

In Australia, where I practice, we have a 'fair dealing' exception to copyright infringement which requires use of the material in, inter alia, research or study, criticism or review or reporting the news. I would suspect Mr Stein could fall under criticism or review - but doubtfully, as he is not reviewing or criticising the work itself -

Perhaps Ms Ono should have sued in Australia?

Lawrence Lessig does a really good blog on Fair Use in the United States - http://www.lessig.org/blog/.

Other Comments by acs

43. Comment #188326 by mmarchisin on June 3, 2008 at 10:57 pm

Imagine no Ben Stein.

Thought this was funny too.
http://holylonely.ytmnd.com/

Other Comments by mmarchisin

44. Comment #188329 by Nephite on June 3, 2008 at 11:16 pm

I'm not worried about Expelled. I think the answer to Expelled is reason, not bullying. How about making an all-out documentary on human origins. The greatest story ever told, the new creation myth. Awesome!

Other Comments by Nephite

45. Comment #188336 by brainsys on June 4, 2008 at 1:02 am

Have you read the Expelled blog here:
http://barbadosfreepress.wordpress.com/2008/04/19/expelled-ben-steins-new-movie-asks-some-dangerous-questions/

'Scientists' clear, concise and always ultra-polite rebuttal and clarifications of muddled ideas are a masterpiece in dealing with Ben Stein inspired thought (thoughtlessness?).

I'm guessing 'Scientist' must be a reader here. Please take a bow ...

Other Comments by brainsys

46. Comment #188341 by bamboospitfire on June 4, 2008 at 1:27 am

 avatarHow odd. One can breach copyright for the purpose of criticising the material in question in accordance with the principle of free speech? I would ask why it is necessary to reproduce something in order to criticise it. In this context, Stein could simply have said "Remember that line from John Lennon's song 'Imagine', which suggests that it would be a good thing if religion didn't exist? Well I think that would make us all filthy commie bastards!" This law strikes me as bizarre in the extreme.

By the way, brainsys, the apostrophe after the "s" at the end of "Scientists'" makes it plural. The rest of the grammar and punctuation in that sentence is shocking though.

Other Comments by bamboospitfire

47. Comment #188354 by Saerain on June 4, 2008 at 2:28 am

 avatar
Evidently, religion is the only thing standing between us and Stalinist dictatorship.
Yeah, because democracy is so obviously a Christian political ideal.

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48. Comment #188358 by Dhamma on June 4, 2008 at 2:35 am

 avatar
Comment #188266 by Garnok on June 3, 2008 at 2:42 pm:

I think the problem here is that, combined with the Stalin images and such, he was probably confusing John Lennon with Vladimir Lenin.

I am the Walrus?

Other Comments by Dhamma

49. Comment #188359 by irate_atheist on June 4, 2008 at 2:37 am

 avatar42. Comment #188315 by acs -

"If the law supposes that...the law is an ass - an idiot." Mr Bumble, Oliver Twist

Edit: You're right, I'll admit. But I'll carry on being irate - unthinking or not.

Other Comments by irate_atheist

50. Comment #188391 by BaldySlaphead on June 4, 2008 at 3:25 am

 avatarSurely a better criticism of Expelled's use of 'Imagine' is that they appear not to understand the lyrics.

The bit they use in the film is:

"Nothing to kill or die for
And no religion too"

In context, that's:

Imagine there's no countries
It isn't hard to do
Nothing to kill or die for
And no religion too
Imagine all the people
Living life in peace

So, er, Lennon isn't suggesting we should imagine how the removal of religion would result in no killing and nothing to die for, he's saying one of two possible things, dependant on whether one believes the first and third lines of each stanza are connected:

1)imagine a world without countries - there'd be nothing to kill or die for, oh, and while yer at it, *also* imagine no religion.

Or

2)imagine a world without countries, then imagine having nothing to kill or die for,and *also* imagine no religion.

In either case, the 'and' makes it clear they're obviously independent statements.

How unlike Creationists to misuse and misunderstand what a quote's actually saying, eh?

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