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Is the sexed-up Power Rangers short making a statement? Why the answer is important

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Director Joseph Kahn released a gritty, 14-minute look at an alternate version of the popular Power Rangers characters.

The short quickly blew up, and video-sharing site Vimeo briefly featured the video on its front page before suddenly removing it entirely.

So what happened, and what does the future hold for this particular fan film? And are these sorts of projects copyright infringement, or covered under fair use?

Well, those aren't easy questions to answer.

Profit may not matter

Brad Newberg is an intellectual property partner at the law firm of McGuireWoods LLP, whose practice is almost entirely copyright and trademark law. He found the case fascinating, as the video rests in an uncomfortably gray area of the law.

"In terms of it not being for profit, it's only one factor to be looked at," Newberg explained.

First, it's important to note that when a site like Vimeo receives a takedown notice from a copyright holder, they have to take the content down, no questions asked. "They can't make a determination on their own in terms of whether or not they think it's copyright infringement. If they want to operate under the safe harbor of the DMCA, they have to take it down," Newberg explained. This is how the process begins, and after the content is removed, a few things may happen.

The creator of the allegedly infringing content has a few weeks to send a response saying they believe their content does not infringe on anyone else's copyright, and if that happens, the copyright owner must bring suit against the creator of the content. If no suit comes, the content goes back up.

I reached out to Vimeo, which confirmed that this is exactly what happened.

"Joseph Kahn's Power Rangers reboot has been removed from Vimeo due to a takedown notice filed under the Digital Millennium Copyright Act ('DMCA') by Saban subsidiary, SCG Power Rangers LLC, the copyright holder of the original Power Rangers series," a Vimeo spokesperson told Polygon.

"By removing the video, Vimeo is not siding with Saban in this dispute. Rather, we are only acting in accordance with the DMCA, which contains a process that allows users like Mr. Kahn to challenge takedown notices by copyright holders. Mr. Kahn has submitted a notice challenging Saban's takedown notice. If Saban does not file a lawsuit against Mr. Kahn within 10 business days, Vimeo will restore his video in accordance with the DMCA," the statement continued.

So what happens next? It depends on Saban. The situation could move to the courts, or Saban could fail to bring suit and allow the video to be reposted.

If the case does result in a lawsuit, what then?

It's gotta be commentary

The question of who would win this particular, hypothetical lawsuit doesn't have a clear answer.

"Characters are copyrightable. The way that characters are expressed are copyrightable. When you go and put a video out without the copyright holder's permission, then the question is going to come down to: Is the work you're putting forward some sort of parody or commentary on the original work or the characters themselves?" Newberg said.

"That is really, nine times out of 10, what the issue will come down to."

He listed some examples. There was a case where someone created a sequel to Catcher in the Rye, with Holden Caulfield as an old man. The work merely continued the story, which was found to be infringing.

"This is a law school exam-type question"

What if, on the other hand, you released a version of Gone with the Wind told through the point of view of a slave on the story's plantation? That's fair use, as it provides commentary and in many ways parodies the original work. You can buy that particular book yourself and check it out.

So the question is whether the Power Rangers short is providing any commentary or parody. The interesting wrinkle is that people online can't seem to decide whether the director was poking fun at hyper-dark takes on kiddie subject matter, or being serious. Is this a story in the world of the Power Rangers, or is it making fun of the idea of an ultra-dark Power Rangers story?

"That is as much in the gray area as I could give as an example. One could view this as commentary: Taking a broad view of this, you're taking a kids cartoon and making it a much darker short, and you could say, well, that's commentary on the copyrighted work and the characters," Newberg explained.

"The copyright owner could make a really decent argument as well that no, what you're really doing is creating a new story with our copyrighted characters, and we are the ones who have the sole right to make derivative works." While judges may decide an issue of fair use if it's clear-cut, this is not one of those cases. It would likely go ahead to a jury.

"This is a law school exam-type question," Newberg said.

What does the director think?

The director, Joseph Kahn, may have helped put it to rest when he gave an interview the day the short came out.

"What I really want to accomplish when you watch, is you should really take it seriously. There's nothing playful except for maybe the Hip-Hop-Kido thing. Maybe a few little like motivational character [things], interactions and stuff. Overall, it's a very serious thing," Kahn said in an interview with HitFix.

"The joke isn't that you're laughing at each particular scene; the joke is that we did this 'fuck you' thing in the first place. You're going to look at it and you go wow I can't believe they fucking did that."

We reached out to Kahn for comment, but have yet to hear back. For now, maybe take the advice of his Twitter feed.

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