Does my live movie riffing show have to pay for film rights?
August 14, 2015 12:15 PM Subscribe
I ran (and hopefully will run again) a live movie riffing show along the lines of a Mystery Science Theater 3000. The first time I did it, we did a film from the public domain, but I know it would be a lot more popular were we to have a better class of film. I know you're not my lawyer and this is not legal advice, but is this something that could be considered a transformative work and I could sidestep licensing the films?
Of course I know that movie studios are litigious and that MST3k and Rifftrax and Cinematic Titanic chose to license their films to avoid this, but that's not the question here. I'm asking is it possible that such a show, where the point isn't the film, but the criticism and the skewering of the film, could be considered to be a protected fair use of the original material under US Copyright Laws?
Of course I know that movie studios are litigious and that MST3k and Rifftrax and Cinematic Titanic chose to license their films to avoid this, but that's not the question here. I'm asking is it possible that such a show, where the point isn't the film, but the criticism and the skewering of the film, could be considered to be a protected fair use of the original material under US Copyright Laws?
This response is SO MONEY I am repeating it here:
The two questions you should be asking are: "what is the likelihood I will be sued for this performance?" and "if I am sued for this performance, what is my possible financial exposure?" These are highly specific legal questions that depend on your circumstances and require you to go to a lawyer. Since there is no clear precedent here, the question shouldn't be whether you're right or not, it's whether you can survive a (possible) court case. It doesn't entirely matter if you can win in court if you can't afford the court fees and legal fees associated with that (possible) court case.
I am sure you are funny, and I am sure you are entertaining, but I also believe that there is a perfectly good reason why the Riff Trax/MST3k/Cinematic Titanic folks do it the way that they do it. They don't want to be dragged into court, sued into oblivion and then have their collective ashes scattered to the wind.
posted by Major Matt Mason Dixon at 12:44 PM on August 14, 2015 [7 favorites]
The two questions you should be asking are: "what is the likelihood I will be sued for this performance?" and "if I am sued for this performance, what is my possible financial exposure?" These are highly specific legal questions that depend on your circumstances and require you to go to a lawyer. Since there is no clear precedent here, the question shouldn't be whether you're right or not, it's whether you can survive a (possible) court case. It doesn't entirely matter if you can win in court if you can't afford the court fees and legal fees associated with that (possible) court case.
I am sure you are funny, and I am sure you are entertaining, but I also believe that there is a perfectly good reason why the Riff Trax/MST3k/Cinematic Titanic folks do it the way that they do it. They don't want to be dragged into court, sued into oblivion and then have their collective ashes scattered to the wind.
posted by Major Matt Mason Dixon at 12:44 PM on August 14, 2015 [7 favorites]
One of the evaluated characteristics of Fair Use is (according to Wikipedia):
3.the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
You're going to be using the ENTIRE MOVIE -- all frames, words, content, design, everything....I (and IANAL) don't think you're going to have any chance using Fair Use as a defense. Even if you're reframing it in a comedy way, you're still using such a substantial portion of the content that 'transformative' becomes a small part of what's going on compared to what's going on in the copyrighted portion you want to use. Do an honest evaluation of what percentage of the final product you're producing is new content: 10%? 5%? Are you showing the full frames of the movie and being quiet while lines are being said on the screen? You may find it is really not much that you're adding in substance, since your comedy relies on people seeing and understanding what's going on in the film you're mocking.
To use it the way you're describing, I'd say you'd have to use small, isolated segments from different films a'la The Soup, to even begin to have a Fair Use defense.
I will note: if you're doing a live show, riffing while displaying the film for people to watch, you just need performance rights, not reproduction rights. Performance rights are easier to get, every "watch a movie in the park community event" gets (or should be getting) performance rights.
Edit: Making money off something is not inherently a Fair Use qualification; it can be used in evaluation of Fair Use, but "I'm not charging for it" is nowhere near a valid Fair Use argument.
posted by AzraelBrown at 1:31 PM on August 14, 2015 [4 favorites]
3.the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
You're going to be using the ENTIRE MOVIE -- all frames, words, content, design, everything....I (and IANAL) don't think you're going to have any chance using Fair Use as a defense. Even if you're reframing it in a comedy way, you're still using such a substantial portion of the content that 'transformative' becomes a small part of what's going on compared to what's going on in the copyrighted portion you want to use. Do an honest evaluation of what percentage of the final product you're producing is new content: 10%? 5%? Are you showing the full frames of the movie and being quiet while lines are being said on the screen? You may find it is really not much that you're adding in substance, since your comedy relies on people seeing and understanding what's going on in the film you're mocking.
To use it the way you're describing, I'd say you'd have to use small, isolated segments from different films a'la The Soup, to even begin to have a Fair Use defense.
I will note: if you're doing a live show, riffing while displaying the film for people to watch, you just need performance rights, not reproduction rights. Performance rights are easier to get, every "watch a movie in the park community event" gets (or should be getting) performance rights.
Edit: Making money off something is not inherently a Fair Use qualification; it can be used in evaluation of Fair Use, but "I'm not charging for it" is nowhere near a valid Fair Use argument.
posted by AzraelBrown at 1:31 PM on August 14, 2015 [4 favorites]
Movie screening licenses usually aren't much more than a couple of hundred dollars. I'd say worth it to avoid risk, especially if you're in a high-visibility area.
posted by Miko at 6:06 PM on August 14, 2015 [3 favorites]
posted by Miko at 6:06 PM on August 14, 2015 [3 favorites]
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This is a surprisingly difficult question to answer. If you actually look for where fair use comes from in copyright law (section 107 of Title 17), you'll find no explicit answer to your question. In particular, you are leaving out one very important detail that almost makes this unanswerable - whether or not you're doing this for profit. Applying fair use is more of an exercise in a survey of existing court cases, and I am not aware of any court cases covering a public showing of a movie with live skewering/criticism. This article (for photography) gives a good overview of the challenges associated with answer the question you asked, which correctly references Campbell v. Acuff-Rose Music as an instance of for-profit parody being considered fair use. However, it has a rather prominent difference from your case - in Campbell's case, the music was actually transformative (in that it changed the song), and in your case, your performance will be additive (in that it adds to the piece).
The two questions you should be asking are: "what is the likelihood I will be sued for this performance?" and "if I am sued for this performance, what is my possible financial exposure?" These are highly specific legal questions that depend on your circumstances and require you to go to a lawyer to answer. Since there is no clear precedent here, the question shouldn't be whether you're right or not, it's whether you can survive a (possible) court case. It doesn't entirely matter if you can win in court if you can't afford the court fees and legal fees associated with that (possible) court case.
posted by saeculorum at 12:36 PM on August 14, 2015 [12 favorites]