Public Domain and Fair Use

From a discussion we were having with Cody Somers (of riffing group Quiptracks),  I figure I’ll throw this question out to everybody… should the “Fair Use” doctrine cover riffing as well?  Especially when it comes to “VOD” style riffing like we do, where it’s not just an MP3 that you sync up, but is the entire movie and our riffing COMBINED that is being downloaded/purchased/watched.

The wording of the 1976 ruling specifically states:

17 U.S.C. § 107 Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
 
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.
 
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Riffing is the bastard love child of the two founding principles of Fair use, criticism and comment, so technically reproducing a movie in its entirety solely for the purpose of framing our criticism/comments should be allowable… however… the clauses do seem problematic.

1) We would be using the riffing in a (hypothetically) commercial manner, as we are (technically) a for-profit organization…  even though the likelihood of us ever seeing any of that profit appears slim.
2) I don’t see any overt conflict here.
3) We would be using the entire movie, as opposed to just snippets of it.
4) Technically, they could argue that our riffed copy would “dilute” the potential buyer pool for their original, because that way someone who just wanted to see the movie could watch our version and ignore us to see the movie without ever paying for it to the original creators.

I can’t find any precedent (especially one here in the US) where this has been dealt with to any clarity.  If anybody knows anything about this sort of subject matter and could chime in, I’d be curious to hear what you have to say.

Don’t get us wrong, CFTP is still committed to focusing on Public Domain movies to keep the costs down (to free, where applicable)… but it would certainly help to know where we stand on some rights-questionable movies, like “Gamera vs Jiger” and “Werewolf Vs The Vampire Woman” where the movies are technically only in the Public Domain in the US, but not internationally.  Also, it could potentially open up some greener pastures for us in the future – we’re not going to instantly leap out and riff Battleship (mainly because that would mean we have to watch Battleship) but it would certainly make the 1960s and 1970s a much more target-rich environment.

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