Friday, February 27, 2015

Invoking IP: Power Rangers Video Remake Takedown - Copyright's Violated?

Hopefully you got to see the amazing Power Rangers reboot video that went live this week.  I was not a big Power Ranger fan back in the day.  They were big during my, "I'm not a kid so I don't watch that stuff" phase.  Likely my loss.

io9.com still has a still from the video on its website.

Because if you didn't already catch the video, you likely won't.  HuffPo reports that takedown notices from the owners of the Power Rangers IP, Saban Entertainment (no word on relation to the coach), sent take down notices to have the video removed from both Vimeo and Youtube.  DMCA is not my specialty, so I can't speak to the take down notice process and what, if anything, Adi Shankar can do to fight them.

But, I thought it would be fun to analyze the situation under fair use.  Fair use considers four factors to determine whether or not the use of copyrighted material is infringement or not.  None of the four factors is dispositive and each must be weighed wholistically.  (There is some research out there that says that the purpose and market effect factors are controlling in actuality if not in case law).

First, we need to consider what, if anything, might have been infringed.  Saban Entertainment (presumably) owns the copyrights attached to the Power Rangers.  What does that encompass?  It covers all of their names, the other proper fictional place names in their world, and the expression of the ideas underlying the Power Rangers.  The ideas underpinning the Power Rangers are free game to anyone.  Ideas can't be copyrighted.  So, costumes could be infringed, character names, musical scores, or other art (I don't think that there's any footage from the series in the video in question...but it's not like I can rewatch it to double check).  There's probably some use of copyrighted material here (if only names, etc.), but was it fair use?

Factor 1: Purpose of Use
   Purpose of use considers whether the use was for "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." (17 U.S.C. § 107).  These uses are listed in the statute, but the list isn't exhaustive.  What are the purposes of use that weigh against finding fair use?  Commercial use or "decorative use."  According to HuffPo, Shankar shot the homage as "a fan video created with no intention to make any money."  That sounds a lot like a "decorative purpose" to me.

   Purpose also considers how transformative the use was.  In the case of creating a derivative work, like this one, there's a certain amount of underlying material that has to be used to conjure up the work being referenced.  The most famous case is likely one between a publishing house and the estate of Margaret Mitchell (of Gone with the Wind fame) about a book called The Wind Done Gone.  (Suntrust Bank v. Houghton Mifflin Co., 268 F. 3d 1257 (11th Circuit 2001)).  In The Wind Done Gone, Scarlett O'Hara's half-Black half-sister is the narrator of a scathing work primarily designed to highlight all of the terrible things about life in the antebellum South that Margaret Mitchell just glossed over.

   The court found The Wind Done Gone transformative because it was "more than an abstract, pure fictional work. It [was] principally and purposefully a critical statement that [sought] to rebut and destroy the perspective, judgments, and mythology of GWTW." (268 F.3d 1270)  And, in many ways, the Power Rangers video does the same thing.  Quoting the io9 story that introduced it, "We did not think the Power Rangers could be this dark. We were so wrong."

But, ultimately, though the story is a continuation, it's using the same characters.  The Wind Done Gone created new ones.  This prong points both ways, but ultimately it augurs against fair use.

Factor 2: Nature of Work Copied From
   Nature of the work is easy.  Works of fiction receive greater protection than nonfiction works.  The Power Rangers are fictional characters.  Therefore, they enjoy a greater standard of protection than enjoyed by a non-fiction work.  This factor also points to illegal infringement.

Factor 3: Amount Used
   Amount used goes to two factors.  The first is the actual amount used, though the courts are constantly reminding us that even one bit of plagiarism is infringing.  There are usually examinations of how much of the copied work is composed of material from the original and how much of the original has been moved into the copy.  But, infringers also cannot take 'the heart of the work.'  (Harper Collins)  I know how this works in written word--what's the 'heart' of the Power Rangers?  That would be so much easier to answer if it had been these guys.  I'm going to say that since the plot has been advanced, the amount used is minimal but it's there.  This factor is likely neutral.

Factor 4: Market Effect
   Finally market effect.  This factor asks how allowing the use of the infringing material will affect the market for the original.  Since the infringing material was non-commercial, there's likely no deleterious effect on sales of the original Power Rangers episodes.  In fact, it likely has a positive effect on sales of the original Power Rangers series.  Unfortunately, a quick check of Amazon's streaming service reveals that they don't give out data about sales ranks for streaming video.  But, I'll bet more than one person decided they wanted to rewatch an old episode after viewing James van der Beek in the short film reboot.

That's two factors in favor of infringement, one neutral, and one pointing against infringement if you're a crazy free marketeer like me.  Likely this is infringement.  But, this was likely excellent exposure for Saban Entertainment and for the Power Rangers.  As I noted in an earlier post about live broadcasts of games, even if it was infringement leaving it up is probably good business.  It interests your customer base and encourages your fans to further interact with your product.  Infringement or not, this was not the right choice.