Fair Use Riffing? (A follow up to the film rights discussion)

@Lesley and everyone! I have no idea how I missed this earlier post (“Hey pals, it’s time for another IN DEPTH update, this time looking at the thrilling and not-at-all dull world of acquiring movie rights! Check it out and let me know what you think.)

However, it is one that is related to my professional work and my fandom of MST3K for years! (I am a copyright lawyer, librarian, and author working on copyright scholarship). Forgive my long post… but I wanted to share the beginnings of a draft article on this very topic that might be of interest – and have fun too! The article is much longer – looking at licensing, public domain, and such – but here, I extracted the part where I explain modern fair use interpretation through the lens of Mitchell!

(I realize this is the opposite of the “get the film rights” and “other considerations” post, but thought it might be of interest to this community to hear about other areas of copyright beyond licensing)

Now, I have always wondered about the permission/license vs. utilizing fair use for riffing episodes. The last twenty years of fair use law has seen a definitive shift - non-profits, for profits, educational, media, journalism, Broadway, Google(!) - and many, many more - employ fair use all the time. (Google Images copies and indexes the entire internet everyday and presents us with millions of images – 100% legal under fair use!)

And, the notion of transformative fair use (as made the law of the land by the U.S. Supreme Court in Campbell v. Acuff-Rose Music, Inc. , 510 U.S. 569 (1994)) [Google Scholar] has made the thought of riffing and other comedic uses under fair use so interesting.

But first, let’s make a ground floor here for our path to fair use riffing and dispel any fair use myths. Here’s the basics of fair use law:

Fair use is a legal use of copyrighted material without permission or payment to the copyright rightsholder. Why? Well, imagine of we had to wait for a copyrighted work to be in the public domain before we quote that work? Or if we always had to seek permission to use a work to provide commentary or criticism, and that permission could be denied with no recourse? Copyright law, and specifically fair use, gives us flexibility to allow uses without permission or payment. Under fair use, you may use copyrighted material without permission from the copyright owner.

So, the source of fair use law is statutory: Section 107 of the Copyright Act provides that fair use of a work “for purposes such as criticism, comment , news reporting, teaching, scholarship, or research” is not copyright infringement. This list is not exhaustive; other uses of copyrighted work without permission may also be fair.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Fair use exists to advance copyright’s purpose of “promot[ing] the Progress of Science and useful Arts” in the U.S. Constitution. The concept allows “others to build freely upon the ideas and information conveyed by a work.” But, as stated very plainly (in a great copyright case) fair use “is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors .Does that include riffing a film? Let’s explore the law!

More importantly, for considering riffing as fair use, in recent years, U.S. courts have focused increasingly on whether a fair use is “transformative.” A work is transformative if, in the words of the Supreme Court, it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Campbell v. Acuff-Rose Music, Inc. , 510 U.S. 569 (1994)) [Google Scholar]

This new transformative fair use test takes the tradition four factor test from above and collapses it into a modified two-factor test:

  1. Does the use transform the material, by using it for a different purpose?
  2. Was the amount taken appropriate to the new purpose?

Working within these two questions can certainly help understand the “how’s” and “why’s” of making a transformative fair use. Let’s start with the first question.

We must identify different purposes. So, we ask: “What is the purpose of the original copyrighted work?” Let’s take Mitchell for example! What is the purpose of Mitchell the film? To tell the fictional tale of a gritty, anti-hero, coarse police detective on the trail of…. Some drug ring and a burglary?

Then we ask, to identify if there is a different purpose: What would be the purpose of a riffing Mitchell episode with an hour and a half of comedy lines, dialog, and puns directly using the original film? Certainly, it is a different kind of entertainment than the original film. Does the riffing add something new, according to the U.S. Supreme Court’s test, “with a further purpose or different character, altering the first with new expression, meaning or message?” I’d say YES!

mitchell.riff

So, we move on to question two of the transformative fair use. “Was the amount taken appropriate to the new purpose?” Note that is fair use law there is no magic number! Neither in the language of the fair use statute, nor the 40+ years of fair use caselaw that has interpreted this statute, have banned the potential for copying an entire work under fair use.

Generally, the courts have rejected any numerical formulation (30 seconds is fair use, 31 seconds is infringement? No! ) That’s a common fair use and copyright myth. There are no magic numbers or amounts.

Now, “less is more” in the traditional four factor test, sure! But in the modern transformative fair use test the test is “as much as necessary” to serve the new transformative purpose. As the far back as '84 the U.S. Supreme Court stated in Sony Corp. of America v. Universal City Studios, Inc. (the Betamax case) “the fact that the entire work is reproduced … does not have its ordinary effect of militating against a finding of fair use."

In Authors Guild v. HathiTrust, about digitized books & access, a court reaffirmed the flexible “amount” and said that “[f]or some purposes, it may be necessary to copy the entire copyrighted work, in which case Factor Three does not weight against a finding of fair use.”

So, let’s say the riffing Mitchell episode uses 80-90% of the film. As long as that is “as much as necessary” to serve the new comedic transformative purpose – that might be OK under the transformative fair use test!

Therefore, could the new riffing Mitchell episode be a legitimate transformative fair use? Maybe so!

Lastly, you might say, “But these riffing episodes are sold, or make money somehow – doesn’t that take away the fair use right?” No!

Courts have, for the last 30 years, stated that the more transformative the use, the less impact any monetary or commercial impact will matter in the fair use analysis. Again, this is how Google, Bloomberg News, Dorling Kindersley Publishing, and a host of other commercial enterprises have used transformative fair use successfully – despite their for-profit status. Fair use is for all!

Now, I realize this is too long a post! Sorry, but I welcome any thoughts and comments!

Is riffing a fair use? :blush:

(And I will be sure to release the full version of the article when it’s published with more coverage of public domain, licensing, fair use, and other considerations!)

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This is a terrific, insightful post and I’m so glad you wrote and shared this.

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Here’s my question (interesting topic, by the way). Continuing your use of Mitchell as the example. I’m assuming that Mitchell is not in the public domain (and yes, I now am more aware of how sticky that particular topic is).

  1. What you’re seeming to say here is that MST3K could use Mitchell with or without the permission of the copyright owners because riffing the episode falls under fair use. Am I good so far?

  2. If I am, then, here’s my follow-up question. Given that this is not public domain stuff and there are likely royalties that could be demanded for use of the actual movie (and the owners of the movie are likely alive, whether they are well or not is moot), they would still have to pay for it even if it was considered fair use, right? The owners of Mitchell could still demand payment even if they couldn’t deny the use of the movie. Is that right?

It’s an interesting subject to theorize about. I would point out that the MST3K folks are not likely to take advantage of fair use in this case, because they want their product to be distributed on outlets like Twitch and Pluto that are owned by major entertainment companies, who would probably be unwilling to participate in such an exercise.

What you’re seeming to say here is that MST3K could use Mitchell with or without the permission of the copyright owners because riffing the episode falls under fair use. Am I good so far?

Yes! Exactly!

If I am, then, here’s my follow-up question. Given that this is not public domain stuff and there are likely royalties that could be demanded for use of the actual movie (and the owners of the movie are likely alive, whether they are well or not is moot), they would still have to pay for it even if it was considered fair use, right? The owners of Mitchell could still demand payment even if they couldn’t deny the use of the movie. Is that right?

Well not exactly. Fair use is a copyright exception. There are a lot of exception in the copyright act - section 107 through 122! Some are mechanical exceptions (“I can do a cover song of any song, but I pay an automatic fee to the artist”), and some are fee based. But, fair use is a special exception that allows a fair use without permission or a fee - again, as long as it is a fair use. And it only applies to in-copyright works. (Anything in the public domain can be used by anyone for any reason at all because the rights have expired.)

Arguably this means no payment - no royalties, no license charges, no fees, etc. connected to the copyrighted work.

Wild right?

Most likely - but Twitch and Pluto also have to obey copyright law - including fair use. In those systems the concern is more likely to be a “takedown” is issued, and that interrupts the viewing! Takedowns can be resolved by a claim of fair use - again, its the law - but it takes time. And all this is covered, typically, under the platform’s DMCA process.

But as we know from a decade-long lawsuit over a 30 sec. dancing baby video clip on YouTube (the baby was dancing to a garbled 20+ seconds of “Prince’s Let’s Go Crazy” video below) copyright holders have a “duty to consider—in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use.”

Thank you @McCloud! (Also, your name is the best!)

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Twitch may have been a bad example. Pluto is a better one for the point I was making. Pluto is owned by Viacom, and they’re not going to agree to carry a series that uses material without paying rights fees, even if that use is technically legal. I believe the makers of MST3K want to allow for the carriage of their show on platforms like Pluto, or on some cable channels where I’ve seen the show listed, so I don’t believe they’d consider taking advantage of fair use in this way.

Agreed!

However, what I found interesting about @Lesley’s post about getting film rights was the “orphan works.” These are films that most like have a copyright still (not in the public domain) but, because of the change in the copyright law between 1909 and 1976, and all the new requirements for renewal and registration, some films are these “orphans.” So there is no person, estate, or licensing agency to go to get permission for these orphan works! But they are out there… waiting to be riffed! :innocent:

For many of these works - fair use is the only answer!

So in that case, I wonder about how fair use could be employed by riffers for these gems!

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