The Internet is buzzing over Vimeo and YouTube removing a Power Rangers short fan film over copyright infringement and the recent deal between the films producers and the Power Rangers copyright holder that will allow the film to be freely distributed across the Internet. The original copyright complaints were initiated by billionaire Haim Saban’s company, Saban Brands, which owns the Power Rangers franchise. (Sabah Brands also has a feature film in the works with Lionsgate.) Veteran music video director Joseph Kahn, and producer Ari Shankar created the short fan film. Unlike Saban’s Power Rangers, which is generally light an uplifting, Kahn’s Power Rangers is dark and bloody, with characters that are very different from their TV counterparts. Kahn’s fan film has the Power Rangers snorting coke, firing guns, cursing, and having intense knife fights. The film also has a star-studded cast including Katee Sackhoff of “Battlestar Galactica” and James Van Der Beek.
When the film was removed from YouTube and Vimeo, the Internet went apoplectic; fans throwing virtual jabs at Saban, along with Kahn and Shankar taking to Twitter to rile up the fans and make their own attacks on Saban. With all the rhetoric going back and forth, one thing was clear: very few of the players involved understand how intellectual property laws work. Maybe that’s not too surprising, given the Internet’s uncanny ability to create false facts and urban legends that somehow become “truth” for web surfers everywhere. In this case, the lack of legal understanding helped Kahn and Shankar’s social media blitz and with Saban’s reluctance to get on the wrong side of potential fans, the two groups found a compromise, giving Kahn’s Power Rangers back to the people.
Despite the outcome, what would have happened to Kahn and his film had the Internet not gotten involved? Why did Saban give in? This won’t be the last time a copyright holder loses a bid for control of his or her intellectual property so it pays to take a look at the issues so anybody with, or wanting to use, someone else’s creative content understands the boundaries of copyright protection.
How much control does Saban have over the Power Rangers’ brand?
Saban holds the copyright for the Power Rangers through a holding company, Saban Brands, which has the exclusive right to control any copying, distribution, public display, performing publicly, or creation of derivatives for the Power Rangers. For Saban to invoke copyright infringement, Kahn’s video has to break one of the rules. These rules are hard to define with different courts having slightly different interpretations. But it is safest to view them strictly if deciding if those rights are being violated. For example, uploading a Power Rangers TV Show onto a website violates the copy, public display and public performance rights. The distribution right is not violated because the show is not being physically transferred, it is merely being viewed and viewing a video is not copying. If the video were downloadable, then that would violate the distribution right. So, if Kahn violated any one of these rights, he and his company committed copyright infringement, unless his film falls under “fair use,” which we will discuss later.The original Power Rangers
When Vimeo first removed the film, Khan laid out his defense via a tweet. He wrote, “Every image in Power/Rangers is original footage. Nothing was pre-existing. There is no copyrighted footage in the short. I am not making any money on it and I refuse to accept any from anyone. It was not even Kickstarted, I paid for it myself. This was made to be given away for free. It is just as if I drew a pic of Power Rangers on a napkin and I gave it to my friend. Is it illegal to give pic I drew of a character on a napkin to someone for free? No.”
Kahn’s points sound logical and the Internet backed him up on those points, however those defenses unfortunately mischaracterize copyright law (perhaps alluding to why he felt he could create a Power Rangers video without consequences from the copyright holder.)
The Right To Control Derivative Works
Kahn claims that since he didn’t copy or distribute or perform any of Saban’s copyrighted material, such as a script or a story sequence, then he is not infringing on Saban’s exclusive rights. That may be true regarding materials that Saban created, but Kahn seems to have forgotten that one of the exclusive rights is the right to make derivatives. The Copyright Act defines a derivative work as “a work based upon one or more preexisting works, such as a . . . motion picture version . . or any other form in which a work may be recast, transformed, or adapted.”
Fictional characters have copyright protection, outside of the underlying copyrighted material, provided that they are sufficiently unique and distinctive. Judge Learned Hand (yes, that is his real name) established the standard for character protection when he stated that, “… the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinct.”
In determining whether characters reach the level of uniqueness required, courts will look at the personality traits, identifying characteristics and relationship with other characters, among other things. If the characters in a new work contain enough identifiable material that someone exposed to the new work would recognize the character as being derived from the copyrighted work, then it would be a derivative. For example, anyone can write a story about a magic school where wizards are educated and the main characters stop an evil villain. But, if the main character is well known for the scar on his forehead in the shape of a lighting bolt which he received when a villain tried to kill him, then the author may find a cease and desist letter or takedown notice from J. K. Rowling.
In fact, author Nancy Kathleen Stouffer sued J.K. Rowling in 1999 for copying Harry Potter from Stouffer’s short stories, The Legend of Rah and the Muggles and Larry Potter and His Best Friend Lilly. However in her stories, “Muggles” were a race of mutant humanoids, not wizards. The Larry Potter character, like Harry Potter, is a dark haired boy with glasses although he does not appear in the The Legend of Rah and the Muggles. Stouffer claimed other similarities, however they fell short of being distinctive enough. The judge wrote, “no reasonable juror could find a likelihood of confusion as to the source of the two parties’ works”.
Kahn’s Power Rangers film uses characters that Saban holds the copyright to and is adapting those characters to create a new work. It doesn’t matter that Kahn is only using original material; the characters are not original. Even with Kahn’s dark and gritty interpretation, which has markedly different personality traits from the Power Rangers in the original series (I am pretty sure that Power Rangers never snorted cocaine on TV), the characters are clearly Power Rangers. As well, Kahn doesn’t make any claims that they are anything but the Power Rangers and so he has created a derivative work. Since Saban controls derivative work of the Power Rangers, then Kahn has violated Saban’s right to make derivatives along with the right to control copies, public display and public performance, and possibly distribution rights as well.
The Fair Use Defense
Kahn’s second defense is actually a good one, but not for the reason that he thinks. Kahn is saying that because he isn’t profiting from the film, he is not infringing. Shankar also suggests in other tweets that fan films are not copyright infringement.
The idea stems from a misunderstanding of the doctrine of fair use, which allows the use of copyrighted works without permission from the copyright holder. Profiting from a work is a factor in a fair use analysis but it is not the only one, and so doesn’t determine the final outcome, it only weighs in favor of fair use.
The Copyright Act lists types of activities that would be considered fair use, including critique, commentary, news reporting, teaching, research, and parody. We wouldn’t want our news reporters to get permission each time they needed to use copyrighted material to explain an important news event, or a movie critic to receive permission to use clips when creating a review. We need unfettered access to copyrighted material to ensure the free flow of information and free speech. However, the movie critic can only use as much as is needed to get the point across, so a two- minute clip or a clip of the ending would be an infringement.
More importantly, only the court, on a case-by-case basis, can determine using copyrighted material is fair use. There are, of course, clear usage that doesn’t need court intervention only because we all understand and agree that those specific uses are clearly fair use. For example, a teacher using pages from a book to teach a class is fair use, copying a chapter is less clear-cut, but if the teacher copies the entire book and distributes it to the class, then the teacher would have committed copyright infringement.
Outside of that list, use if copyrighted material can still be considered fair use under certain conditions. If an infringer claims fair use, the court will use the Four Factor Test to analyze the usage. None of the factors are determinative although their weighting will vary base on the facts of the case. They four factor are:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
It is very difficult to know whether a work is fair use because we don’t know how a court will weigh the factors, although we can often know which is more likely or whether a good case can be made for fair use. For example, if a copyrighted work is used by a non-profit organization, and only a small part of the copyrighted work is used, and the copyrighted work only plays a small part in the totality of the new work, then it is likely fair use.
Kahn is using the Power Rangers character’s throughout his derivative work, and is exposing the work to a large audience, which may have an effect on the market. So despite not generating any income, the fair use analysis would probably fall short. As for Kahn’s comment regarding drawing Power Rangers on a napkin and giving it to someone; that analogy is false. The nature of that work is very different than a film being seen by such a large audience, especially given the graphic violence and drug use that could conceivably hurt the Power Ranger’s brand among its current fan base.
Parody Could Be The Key
While the traditional fair use test may not weigh in Kahn’s favor, the parody exception (one of those listed in the Copyright Act along with criticism, news reporting and teaching) leans heavily toward Kahn’s Power Rangers being fair use. For a work to be considered a parody, the work must poke fun at the original work. However, the work cannot be used to poke fun at another work, which would be considered satire, and not fair use. Parody usually attempts to exaggerate a work in a humorous way without any political or social meaning. Saturday Night Live uses parody to mock movies among other things, and so doesn’t need permission to use the plotline and characters. Courts also look at these additional factors in its parody analysis
- the parody must be obvious: the audience should not have to struggle to figure out what is being made fun of.
- the parody must take no more of the original than necessary to make its point. So changing just the words in a chorus of a popular song, while leaving the rest of the song intact, is likely not fair use.
- a parody cannot pose a direct threat to the market for the original work. Think of it this way, would people buy the parody instead of the original, cannibalizing sales of the original?
Is the Kahn Power Ranger’s film a parody? The idea that the film is making fun of the Power Rangers is fairly obvious. As well, few people are going to watch this movie at the expense of the original Power Rangers. As a parody, the film would likely be considered fair use, however, if it were a full length feature film competing against the new Lionsgate Power Rangers film, then it would probably not be considered fair use.
YouTube and Vimeo were wrongful villains
Saban wasn’t the only one who received ire and consternation from the Internet. YouTube and Vimeo were also lambasted for having removed the film. What the Internet failed to understand is that YouTube and Vimeo were required to remove the film under the rules of the Digital Millennium Copy Act (DMCA), in order to continue to be immune from prosecution for copyright infringement. The immunity is critical for site like YouTube to operate because copyright is a strict liability law.
Under copyright law, companies that host user generated content would be liable for copyright infringements each time a subscriber uploads copyrighted material. As a strict liability law, whether the companies knew that the material being uploaded was copyrighted protected has no bearing. The simple fact that the service is publicly displaying the work is an infringement. Obviously, no company could successfully function under those rules because the company would be under constant legal threat. To alleviate the risk, Congressed passed the DMCA, which includes Safe Harbor provisions allowing immunity for content providers, if certain conditions are met.
First, the site must merely host content and not actively be involved in generating or promoting the content. Sites must also register as a Safe Harbor company with the Copyright Office and provide a DMCA specified mechanism for users to request removal of infringing material. The DMCA procedure for takedown requires that any infringing material be removed upon request. Saban made a takedown request, and Vimeo and YouTube abided by the request as required. If Kahn and Shankar disagreed, for example claiming that the work is fair use, then they can make a counter-claim.
The DMCA procedures for a counter claim would work like this:
When the provider (YouTube or Vimeo) received the counter claim from Kahn, the provider must promptly notify Saban that a counter claim had been made. The notification to Saban must include the reason for the cournter0claim, Kahn’s contact info, and that the provider will replace the video, and cease disabling access to it, in not less than 10 business days, but no more than 14 business days, following receipt of the counter claim. To keep the video disabled, Saban must petition the court for an injunction, but if he can’t get an injunction within the ten day time period, the film would be restored.
Unfortunately for Saban, injunctions are time consuming and expensive, and aren’t usually something that can be accomplished in 10 days, especially in places like California and New York where the courts are overwhelmed with cases. Usually, the removed work ends up back on the site, with the copyholder initiate a copyright infringement lawsuit, which will also ask for an injunction. That would give Saban more time to write a coherent argument for the court, and allow for a response from Kahn. However, courts do not usually give injunction unless the removal is time-sensitive or the continued use irreparably damages the copyrighted work. Courts prefer to let the case proceed normally, in which if the copyright holder prevails will receive appropriate damages.
As for YouTube and Vimeo, they were only following procedures. “When a copyright holder notifies us of a video that infringes their copyright,” a YouTube spokesperson told Deadline, “we remove content promptly in accordance with the law.” A more interesting case, however, is Facebook, which allowed the video to remain on Kahn’s Facebook page; refusing to honor the takedown request. Why Facebook did not follow DMCA procedures uis not known however, Shankar did thank Mark Zuckerberg personally on his Facebook page writing: “Thank you Mark Zuckerberg for hosting Power/Rangers and taking a stand.
In the end, Kahn and Shankar struck a deal with Saban, and are now free to push their Power Rangers film anywhere online. The settlement required extensive disclaimers noting that the work is a fan film, made without any affiliation from Saban Brands, as well as claiming no rights to the characters. YouTube is apparently hosting a cleaner version of the video, while the original “NSFW” version is being hosted on Vimeo. (And at the top of this page) Kahn wrote on twitter, “Hey internet, YOU WON. Saban has kindly and generously agreed to let us show POWER/RANGERS!”
If the case had moved forward to court, other issues such as trademark infringement would have also surfaced possibly overcoming the parody defense. Ultimately, the situation was resolved despite the misconceptions related to copyright law, and in many ways, that is what we want to happen. Legal action should be the last approach, not the first one. Kahn and Shankar created an amazing public relations campaign through social media but perhaps the situation should not have gone as far as it did. Had the various parties understood the law maybe they would have talked first and took legal action later. Hopefully, Kahn, Shankar and Saban will know better next time although, given Kahn’s latest Tweet, probably not: THANK YOU to everyone who fought for free speech. You made a difference. Your voice was heard. Kind of nuts, right? (Making a power Rangers short film is not a free speech issue.)