Morphin’ Time Cancelled – Power Rangers Short Film Hit With Copyright Infringement Complaint

Tags

Copyright, Copyright Infringement, Fair Use, Fan Fiction, First Amendment, Parody, Power Rangers, Power/Rangers

For a brief moment, ‘Power Rangers’ was cool again.  Music video director Joseph Kahn released a 14-minute ‘take-off’ of the early 90s original series of the long-running franchise on Vimeo and YouTube entitled ‘Power/Rangers.’  Now, before everyone starts laughing and squawking about how terrifically bad and cheesy Power Rangers was (although its power-metal theme song was pretty cool), with its borrowed Japanese TV stock footage action scenes, cardboard cut-out teenage characters and villain-of-the-week episode format – hear me out.  It was AWESOME.  Seriously.  Kahn’s short film is a dark and gritty continuation/re-imagining of Power Rangers – one set in a grim future where a technologically advanced Earth is split against alien invaders, the Power Rangers have disbanded and the original members (now adults) are either dead, missing, captured, or working with the enemy.  Featuring production values and special effects that far exceeded those of the TV series (no stock footage here!), the film’s cast included Katee Sackoff (of Battlestar Galactica fame) and James Van Der Beek (of teen TV soap-drama fame).  And I’m not alone in my praise of this video, since it went to over 6 million hits on YouTube within a matter of hours.

So if you are convinced, you can view it here . . .for now.  Kahn’s video has been hit with copyright infringement complaints by Saban Brands, the company who holds the rights to the Power Rangers franchise.  As a result, Vimeo and YouTube have already started pulling the copies of the film off their respective sites (they pretty much have to if they want to maintain their safe-harbor protection under the DMCA).  However, Kahn, for his part, is not just going to stand there and take this karate-kick to the gut. . .he’s busting out the Zords!  Just kidding, he’s taking to Twitter to rally the people against what he perceives to be harassment by Saban.  In a series of tweets, Kahn has argued his case for why his work is non-infringing:

“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.”

Saban Brands has taken issue with the film, largely because they are currently working on releasing their own feature-length Power Rangers film.  Although, I can’t imagine that Saban was all too thrilled with the graphic violence and dark tone of the film either, given ‘Power Rangers’ has always been heavily marketed towards pre-adolescent children with a heavy toy merchandising slant.

Toys like THIS awesome action figure . . .until some government buzz kill probably declared it to be a choking hazard!

Kahn, in his own words, is clearly making a ‘fair use’ argument for why his film is not infringing.  ‘Fair use’ is an exception carved out in the U.S. Copyright Act to a copyright owner’s otherwise exclusive rights to a copyrighted work that allows others to make use of it for purposes such as news reporting, teaching, or criticism.  Fair use is the reason why your high school English teacher was able to torture you with photo-copies of select poems by Robert Frost and not be guilty of copyright infringement (darn!) or the reason why an article reviewing a new book can contain quotes or excerpts from that book.

However, what kinds of use are and are not fair use are not specifically spelled out in the statute (although some purposes are, like news reporting, commentary, and scholarship).  Instead, the Copyright Act lays out four factors which must be used to evaluate whether a  particular use case is fair use or not:

1) The purposes and character of the use.  Generally, the focus on this factor is whether or not the alleged infringing work is transformative (i.e does it re-purpose/add something new to the original copyrighted work) versus being merely derivative (i.e. the copyrighted work is closer to being merely copied).

2) The nature of the copyrighted work. Was the work fictional or non-fictional? Does it make use of facts (which are not copyrightable)?

3) The amount of the copyrighted work used and how substantial it is.  Was the whole copyrighted work used or just a portion?  Was the portion used a critical and important part of the work as a whole (i.e. was it the ‘heart’ of the work?)?

4) The effect of the use on the market for or value of the copyrighted work.  Will the use negatively effect consumer demand for the original work?  Would the use be used as a substitute for purchasing the original work?

Neither of these factors by themselves are necessarily determinant of fair use and must all be weighed together, even though at times the courts have appeared to give greater consideration to some over others.

Applying these four factors to Kahn’s Power/Rangers film, he arguably can make a decent case for it being fair use.  Looking at the first factor, Kahn’s use was to make a dark and gritty short film version imagining what might have happened to the original Power Rangers as adults.  Kahn himself has said that he took on the project as a artistic challenge in order to transform a ‘silly’ franchise into something serious.  Given the grim tone and unique plot, I would argue that Kahn’s video is a transformative use of Power Rangers, given the fact that the original series was known for being lighthearted, kid-friendly, and just over-the-top cheesy.  It could also be considered a parody (not necessarily in the ‘ha-ha’ sense of the word) since it arguably comments on the original work.  For instance, some of the characters are clearly suffering from PTSD from their time as a Ranger and at one point, one of the characters openly question the ethics of recruiting teenage children to fight a unknown invader.

The second factor does not help, although it does not necessarily hurt Kahn’s case.  The Power Rangers franchise is a fictional sci-fi/action series that uses imaginative characters, concepts, and situations.  Since it is a fairly creative work (you can debate me about how truly ‘creative’ a show is that rips off footage from Japanese TV shows and appears to be primarily a vehicle for selling toys in the ‘comments’ section below, but fortunately the Courts do not evaluate the artistic value or merit of a copyrighted work), the totality of it is likely pretty strongly protected by copyright laws, as opposed to a newspaper article which would be protected, but would contain facts and non-fictional information that generally would not be protected by copyright.

The third factor is where things get interesting.  As quoted above, Kahn has asserted that he’s not re-using any footage from the Power Rangers series produced by Saban and that his work is all largely original.  While that appears to be true, Kahn is forgetting (more likely he just doesn’t know) that characters from a copyrighted fictional work are also subject to copyright protection.  That’s the reason why we haven’t seen anyone publish a novel about the continuing adventures of the adult Harry Potter and his entourage.  In this case, Kahn’s film use of the Power Rangers characters is still a taking of Saban’s copyrigt.  However, the reason why this factor is tricky is that there is no bright-line limit to how much or how little of a copyrighted work that you are allowed to use while remaining in the safe-harbor of fair use.  In some cases, the courts have found that making use of an entire work was still fair use (such as in the case of an internet search engine displaying thumbnail copies of protected photos in its search results), but in other cases they have found that quoting a paragraph out of 300 page book to be infringing and not fair use (such as in the case of a political magazine quoting less than 400 words from a biography about former President Gerald Ford because the court found the quote to be the ‘heart’ of the work and thus substantial).  Generally, courts will ask a variety of questions in assessing this factor, such as whether the use takes only the minimum that was needed for its purposes from the copyrighted work and what value the portion taken has to the work as a whole?  Arguably, Kahn’s use of the Power Ranger characters was the minimum that he needed for his film (its hard to make a Power Rangers film without the Power Rangers).  However, it can also be argued that those characters are also central to the value of the Power Rangers franchise (think of how important the character of Harry Potter is to J.K. Rowling’s book series).  So even though Kahn is only taking the characters and nothing else, that use could still be deemed substantial.

The fourth factor on economic impact, which usually most people tend to focus on, appears to be in Kahn’s favor.  As Kahn himself stated, he made his video to be distributed for free and is not trying to derive any economic gain.  However, while it’s important to note he’s not trying to directly compete with the Power Rangers franchise in the market, the fact that’s he’s not making a profit is hardly a slam-dunk for Kahn.  A work that incorporates another’s copyright that is available for free can still have an economic impact on that copyrighted work and be infringing (think of whole movies that are posted to YouTube without permission).  This is why courts often consider whether a use would be turned to by the market in question as a replacement for the original copyrighted work.  In this case, it’s hard to see how the 14 minute Power/Rangers film would be a substitute for even an episode of the Power Rangers TV series, especially given the fact that both target different audiences.  Power Rangers is very much a juvenile show, while Kahn’s film, with its violence and tone, is intended for adult viewers.  Considerations such as whether Kahn’s video would damage the reputation of Power Rangers franchise with its dark imagery are normally not taken into account by the courts, since copyright law is not intended to protect a work from negative commentary.  Additionally, arguably Kahn’s film may have an overall positive market effect on the Power Rangers franchise by sparking a new/nostalgic interest in the TV series and its merchandise.

Weighing all four factors together, I would think the Power/Rangers film would fall into permissible fair use.  To me, the factors that stand out as being most convincing are the fact that Kahn did do something very different (and frankly exciting) in his film that approaches the Power Rangers with a radically different attitude than what Saban Brands has previously done, along with the fact that there isn’t really a clear market impact against Saban (it might be another thing if this film was longer or even feature length).

It will be interesting to see how this all plays out given Kahn’s feisty defense of his rights to make the video.  If this dispute does end up going to court, it would be watched very closely for the precedent it would set for the status of fan-made creative works.  The internet is rife with all sorts of fan fiction stories, fan-made films, homages, and re-edits of famous franchises such as Star Wars, Harry Potter, Star Trek, Twilight, etc. . .  However, whether or not these creations are technically copyright infringements or are in the fair use category has remained a grey area, mostly because copyright holders have (perhaps wisely) avoided pursuing legal action against the creators because they don’t want to risk angering their fan base (they also probably recognize that having a fan base that is fascinated enough with their product to expend the time and resources into these fan projects is probably a good thing, if not just free advertising).  Unfortunately for Kahn and Power/Rangers, Saban Brands does not seem to have the same sort of hesitancy.

UPDATE: It appears that the original YouTube posting of Power/Rangers is back on-line, along with a prominent, strongly-worded disclaimer stating that the film is independently-produced and is not anyway affiliated with or endorsed by Saban Brand, along with a warning regarding the film’s graphic content.  I’m assuming that both parties were able to come to an agreement . . .which is really the best outcome.  Kahn gets to continue to share the film while Saban was able to get appropriate disclaimers in place that should minimize any potential reputational harm to the Power Rangers franchise.  Of course, the big winners are the fans and general public.  The lone loser is me and my fellow copyright nerds – looks like we’ll have to look elsewhere for that major precedent setting court case on fan creations and fair use.

Just keep on doing your thing, man.