Mighty morphing… Lawsuit Rangers? A recent Power Rangers’ fan-created video, posted on YouTube and Vimeo, quickly was taken down after the copyright owner claimed infringement, sparking an ongoing debate about such creations and fair use. The 14-minute work, starring Katee Sackhoff (Battlestar Galactica) and James Van Der Beek (Dawson’s Creek), garnered several million views in the two short days it could be seen on the sites before representatives of copyright owner Haim Saban contacted both services claiming infringement.

The short, with a grown-up approach to a kids’ character franchise, then was  yanked, resulting in a copyright strike for the producer under YouTube’s terms of service. It since has gone back up, albeit with disclaimers and age-related safeguards. Should fans blame some evil galactic force or what, in legal terms, befell this bit of pop production, causing it to yo-yo around online?

Fan videos fall into a legal “gray area.” While rights owners do not want to anger their fan base and potentially hurt the good will of their franchise, they must protect their copyright and police their trademark. Fan videos also may have some protection under fair use.

Transformative?

As the distinction between fair use and infringement is “not always clear” or easily defined, important factors must be considered: whether the nature and character of the use is sufficiently transformative and whether the allegedly fair use of the material seeks to make a profit for the user.

It is questionable whether this fan video was sufficiently transformative to qualify as a fair use of the Power Ranger franchise.

To determine transformative value, courts may look to see if the material has been transformed with new expression, information or aesthetics. A strong argument the fan video creators might employ is that theirs is a “gritty, grim… violent” version of the original, as it features a more graphic, darkly stylized version of the childhood favorite.

Besides the iconic Power Ranger suits, which have been revamped to fit the futuristic atmosphere, there is little that uniquely identifies the original; this still may be insufficient for courts to deem the work transformative: Some courts have found that altering preexisting characters, aging or placing them in a different time period, does not add something new, particularly if the character’s personality remain intact as derived from the original work [see Salinger v. Colting, 641 F. Supp. 2d 250 (S.D. N.Y. 2009).]

Determining the degree of transformation is also difficult, as even if a court found the short to be “slightly transformative,” that still not be insufficient to justify a fair use defense, in light of the extensive use of the Power Rangers’ creation.

What the creators say

The creators of the fan-vid insist they have not made money in their work’s creation or release. Joseph Kahn, who directed the work, said that, “Every image in Power/Rangers is original footage. … Nothing was preexisting. 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 [crowd-source funded online], I paid for it myself. This was made to be given away for free.”

This assertion about profitability and market intent, along with the creators’ expressed admiration of a particular series or character, might bolster a fair-use claim.

But such a defense would be undercut by the planned 2016 release of a feature-length Power Rangers film. Under a fair-use analysis, courts would seek to determine whether the use in question deprives the rights owner of income or undermines a new or potential market for the copyrighted work, even if the user does not compete directly with the original. A court could find in this case that the short’s reworking of the franchise undermines the upcoming feature film. It also could be argued in the inverse–that the short brings new life and attention to a franchise that peaked in popularity in the mid-Nineties.

Options

This fair-use analysis may be moot, as it always is unclear if the issues and parties involved will escalate their dispute and engage in litigation. Still, such critical thinking might save some energy and disappointment for those fans who are considering whether to engage with copyrighted material to create and share new works based on their favorite characters. And, of course, in all matters legal, there’s always a negotiated path to try to satisfy parties. Or does that take mighty powers to make matters morph that way, as it did with this fan-vid?