Gritty 'Power Rangers' Short Is Not Fair Use

Bennett Haselton writes: Vimeo and Youtube are pressured to remove a dark, fan-made "Power Rangers" short film; Vimeo capitulated, while Youtube has so far left it up. I'm generally against the overreach of copyright law, but in this case, how could anyone argue the short film doesn't violate the rights of the franchise creator? And should Vimeo and Youtube clarify their policies on the unauthorized use of copyrighted characters? Read on for the rest.

"Power/Rangers", the 11-minute short directed by music video veteran Joseph Kahn, is still available on Youtube, where it was posted by the film's producer, Adi Shankar. Rival video site Vimeo removed the short film after receiving a copyright complaint from Haim Saban, the creator of the U.S. series, for using the characters without his permission.

The movie is OK. I think the people gushing about how amazing it is are mentally comparing it to the awful 1995 "Power Rangers" movie or the bland cartoon. But how are the director and his defenders arguing that the movie isn't a copyright violation?

The director said in one of a series of tweets: "Every image in POWER/RANGERS is original footage. Nothing was pre-existing. There is no copyrighted footage in the short." True, but this ignores the fact that characters themselves can be protected by copyright. Fan fiction sites can exist legally only to the extent that the character copyright owner grants permission (J.K. Rowling has explicitly given permission for the Harry Potter characters to be used in fan fiction; Anne Rice specifically prohibits fan fiction featuring her characters). Most obviously, when a studio like Warner Brothers produces their own gritty reboot of a character, they have to pay fees to the owner of that character, even if every frame of their movie is entirely the studio's own work. Why on Earth would the studio pay those fees, if they didn't have to?

The director also tweeted, "I am not making any money on it and I refuse to accept any from anyone." Well, everyone ought to know by now that that argument isn't going to fly if you put a copy of The Avengers on your personal home page. It's not obvious why that defense should work any better if you've violated someone's copyright by using their characters without permission, instead of just copying their movie.

Kahn also tweeted that the short film was not a copyright violation because it was "satire," and his supporters agreed, calling the film a "parody." (Copyright law holds that you can satirize or parody someone else's work without their permission; thus Jason Friedberg and Aaron Seltzer do not have to pay licensing fees for the movies that they rip off in their awful "parodies.") But no English speaker would use the word "satire" or "parody" to describe Kahn's movie, precisely because of the qualities that people loved about it (dark, violent, almost completely humorless). Most tellingly, as far as I can tell nobody did call it a satire or parody until that started being raised as a defense against copyright claims -- they called it a dark, gritty remake or re-imagining, because that's what it was, and calling it a "satire" sounds jarringly wrong unless you're in on the wink-wink pseudo-legal strategy.

Kahn also invoked "fair use" multiple times, but that's just begging the question: since "fair use" is a catch-all for several scenarios in which you can legally use copyrighted content without the owner's permission (parody/satire, brief excerpt for the purpose of commentary/criticism, etc.), which defense applies here? One of the criteria for "fair use" is how much of the original work you re-used -- if your online review of The Dark Knight links to a 10-second clip that you posted to show that the fight scenes are kick-ass, that might be OK, but a 30-minute excerpt would not be. But if we apply that logic to the use of a copyrighted character, in a story you're either using someone else's copyrighted character, or you're not. Given that characters are protected by copyright at all, it doesn't make much sense to talk about "using 0.5% of a character", the way that a 30-second clip would constitute only 0.5% of a 100-minute movie. It certainly wouldn't make sense in the case of Kahn's remake, where the copyrighted Power Rangers characters are onscreen in every single scene.

The director's defenders rightly pointed out the absurdity of Vimeo removing the short film just hours after giving it a "Staff Pick" award, but the real absurdity runs in the opposite direction -- how did Vimeo's staff give an award to the film that they should have known was a knockoff? Presumably they had heard of the Power Rangers and knew that the movie was using the characters without permission.

Moreover, there's not just a legal argument against an unauthorized "gritty reboot" of the Power Rangers, there's a moral one as well. The short film shows that Joseph Kahn is a technically competent director -- but there are many, many competent directors out there, making gritty sci-fi films of short and feature length, all competing for people's attention. By using the "Power Rangers" name for his piece, Kahn got way more views than he would have gotten if he had released it as "just another dark sci-fi short film." And despite his protestations that he's not making money from the film, it's bringing him exposure and connections which are almost certainly monetizable somewhere down the road, opportunities which come at the expense of other similarly talented directors. Does that seem fair?

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Comments

Parody

[gweeks]

Maybe because it's a parody? I've not watched this movie and don't intent to, but a parody is allowed to use however much of the original work it wants to.

Re:Parody

[xclr8r]

relevant link http://io9.com/the-truth-behin...

Re:Parody

[TroyHaskin]

Not only is it a parody of the show for turning the original tone on its head, but it is also a parody of how every remake/re-imagining these days is gritty, depressing, colorless, and "realistic" (I blame Ronald D. Moore's BSG). I was a fan of the show as a kid and thought the entire thing was brilliant.

Re:Parody

[TroyHaskin]

Fair enough. But let me put on my lawyer hat (i.e., go to Wikipedia, try to find a pertinent precedent, find the actual opinion, and quote like hell) and see what I can do. ...

I reference Campbell, aka Skyywalker, et al. v. Acuff-Rose Music, Inc. from the United State Reports Volume 510: Cases Adjudged in The Supreme Court at October Term,1993 (PDF page 773).

Concerning the fair use defense of 2 Live Crew to parody Roy Orbison's song "Oh, Pretty Woman", to quote Justice Souter's opinion for a unanimous Court decision (pp. 782-783):

The first factor in a fair use enquiry is ... to see ... whether the new work merely "supersede[s] the objects" of the original ..., or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative."

I would argue, thought I'm sure not without debated, that POWER/RANGERS fulfills this transformative requirement of fair use.

Concerning the issue of parody, Justice Souter goes on to say (p.784):

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.

POWER/RANGERS offers the perspective, or critique, of teenagers being recruited to fight an intergalactic war with more actual war-like elements that stand in stark contrast to the light-hearted portrayal of the sampled work. It mimics the characters and world but does make a point: war isn't as fun as was shown.

Concerning the issue of excessive use of elements from the original work, the Justice says (p.792):

Parody presents a difficult case. Parody’s humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to “conjure up” at least enough of that original to make the object of its critical wit recognizable.

I would argue that the author of the work in question took as many elements as needed to make the parody recognizable to the audience such that the parody would function. In taking those elements however, the author did transform a number of aspects to suite the intended parodic purpose of the piece (e.g., newly added machine guns, Bulk and Skull turning homicidal, the protagonists losing and dying).

Lastly, concerning the economic incentive, the Justice states (p.794):

[The fourth fair use factor] requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also "whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market" for the original.

Since the work is blatantly made without the desire of monetary feedback, is not intended to supersede or replace any of the extant or future productions of the original work or author, and has done nothing but bring attention to the original work through this parody, the fourth factor of fair use is satisfied.

But again, I'm no lawyer. I just play one on Slashdot.

Fair use? No. Copyright infringement? Not anymore.

[Guspaz]

Is it fair use? Certainly not, but Saban eventually reversed course and gave permission for the thing to exist. So now it's back up.

Hmmm

[Maury Markowitz]

Haim Saban's "creation" consists of dubbed versions of the characters from Super Sentai, which you can see on the Wiki page for one installment, Kagaku Sentai Dynaman - scroll down.

As a derivative work, Saban doesn't own squat, and ownership, if there is any, probably belongs to Toei Company. However, as the same characters have appeared in many works *as different characters*, the argument might also be made that they are generic.

So this is basically yet another example of someone claiming ownership of something they never owned, which is precisely why copyright is such a farce in general.