Mike Nelson, Infringer?

Michael J. Nelson, writer and host of Mystery Science Theater 3000, and all-around funny man, has a new project called RiffTrax. You see, when MST3K ended, many of us, clamoring from our parents' basements, wished that the amusement could go on. But no television network would pick up MST3K; what to do? Mike had two ideas, one awful, and one RiffTrax. His first idea was to sell DVDs of movies with his humorous commentary on them. This is, sadly, grossly violative of copyright. RiffTrax proposes to sell merely the funny audio commentary to consumers who themselves have to provide the movie. Theoretically, this seems to work very well - it does not cut into the revenues of movie studios at all, because people still have to buy the movies, and, in fact, it arguably makes the movies more attractive on the market because there is another application to which they can be put. This all sounds perfect for everyone.

Well, here's the problem. I should preface what I am about to say by warning the reader that it is speculative, that I don't actually think Mike Nelson is doing anything wrong, and that he would probably win if a lawsuit were brought against him. Now to it. When MST3K was running, the producers had licenses from the filmmakers of the movies mocked. This was cheap and easy because the movies were so awful (and that was the point) that the owners of the copyright simply could not squeeze much out of licensees - the market wouldn't bear it. I cannot imagine that, for instance, Manos: The Hands of Fate is a valuable movie to license. Getting a license for a RiffTrax movie may be impossible as a practical matter, because many of the films are extremely popular blockbusters. Further, the directors of those movies, quite assured of their films' artistic merit, would balk at the idea of allowing someone to mock mercilessly what are their greatest achievements.

So Mike does not have licenses and has no intention of trying to get licenses. Because RiffTrax does not sell the movies at all, though, it might seem like no license is needed. Here is where the speculation begins. The audio commentaries are themselves expression in a fixed medium. The commentaries are only understandable as anything if played in precise conjunction with separate works whose copyrights are held by entirely distinct entities. Do these facts make RiffTrax derivative works? The copyright owner has the exclusive right to make derivative works. Mike Nelson is not the copyright owner. If I add the premise that RiffTrax are derivative works, then we come to a disturbing conclusion - Mike Nelson is a copyright infringer.

There is a separate issue. Even if RiffTrax are not infringing, they may encourage infringing uses by the consumers. Certainly Mike Nelson realized that he could not produce an MST3K-like program without a license. But what happens when the end user plays a DVD and a RiffTrax at the same time? Besides not having those delightful little shadows at the bottom of the screen, he is replicating the MST3K experience without a license.

I sincerely hope nothing comes of this, but I know that money talks in the legal world, and the threat even of a frivolous lawsuit can end many a legal activity. I would also appreciate any comments by people more informed than I am who may be able to explain things better than I.