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Comment: Re:Parody (Score 1) 222

by cpt kangarooski (#49177671) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

And time shifting doesn't use just one. Time shifting monetized (when done by a company) is almost always not fair use. Tivo is the only one that survived legal challenges.

Time shifting is typically something that the end-user does. Tivo, like Sony before it (The original time shifting lawsuit was against Sony for their Betamax), merely makes the machine. So long as there is at least a potential lawful use for the recording function of the machine, they can go on making them. The Supreme Court found that at least some time shifting would be fair, and that was enough.

Space shifting is another example, the original case was against Diamond for their Rio MP3 players, but Apple's iPod relied on it, as did basically everyone else.

But it meets more than just one criteria. It's non-commercial.

No, the purpose of the use for time shifting, while not precisely commercial, is to simply use the work in the way that an ordinary user, who did not time shift, would use it. It's not strongly against fair use, but it certainly doesn't weigh for it in the way that an educational or transformative use would. At best it is a wash.

Comment: Re:Parody (Score 2) 222

by cpt kangarooski (#49177639) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

I don't think the parody exemption for copyrighed works applies to things protected by trademark, which I wouldn't be surprised if the Power Rangers are.

It does.

(Though the question of parodying a mark directly is different from parodying a work which happens to contain a mark. Parodying Star Wars, which includes X-Wings, and the Millennium Falcon, and Lightsabers, and so on is different from parodying the Star Wars logo all by itself)

Also, remember that trademarks are inferior to, and cannot be used as a substitute for, copyrights. And that trademarks themselves are subject to various limitations to allow for certain types of unauthorized use.

Comment: Re:Parody (Score 2) 222

by cpt kangarooski (#49177611) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

Peter Pan is in the public domain in the US. You can absolutely have Peter Pan promoting drug use ('fairy dust' can be the street name; a side effect might be paranoid hallucinations of ticking crocodiles, etc.), and publish it widely enough to detract from Disney's ability to keep Peter Pan a wholesome character that they can make tons of money off.

Go nuts.

But because people can ignore that -- In fact, I'm confident that there are bad porn versions of Peter Pan floating around -- it doesn't really detract from the original, or from the Disney movies, unless you allow it to. It's up to you, the audience member.

Comment: Re:Parody (Score 2) 222

by cpt kangarooski (#49177593) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

a parody is allowed to use however much of the original work it wants to.

That's not quite right.

There's no special status for works which are parodies. Some parodies can be fair uses, but not all parodies are. And not all fair uses are parodies, though some fair uses are.

In any case, one factor in determining whether a use is fair or not is how much, and of that how substantial a part, of the original work is used. It's possible to have a fair use that uses all of a work, but also possible to have a use which uses very little of a work, but which is not fair.

While it all depends on the circumstances at hand, a good rule of thumb is to take only so much as you need. If you wanted to make a parody of Star Wars about how Luke waving the lightsaber around in Obi-Wan's house is dangerous, because Luke is a klutz, you could probably use some footage of that scene from the movie. You would have a harder time justifying using the entire movie, but only changing that one scene for the purposes of parody.

Comment: Re:Parody (Score 2) 222

by cpt kangarooski (#49177547) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

You're allowed to use copyrighted material to parody that specific material, but not to parody something else.

This is the oft-cited parody/satire dichotomy.

No seriously, some people really get into this stuff.

Anyway, it's not a bright line rule or anything, though some people like to pretend that it is. Satire is just as able to be a fair use as a parody can be, and a loss on the third fair use factor does not by itself prevent a use from being a fair use. There are no bright lines in fair use; it's all case-by-case analyses, utterly dependent on the specific facts at issue.

Comment: Re:Parody is protected (Score 1) 222

by cpt kangarooski (#49177525) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

Parody is protected; satire is not.

That's not really true. There is no hard and fast rule to this effect. Certainly fair use allows for both some parodies (but not all parodies) and some satires (but not all satires).

Courts generally are more likely to find fair use where the use was limited to what was needed, and generally find that satires don't need to use particular works so much as parodies do (because a parody is aimed at the work itself, whereas satires merely employ a work to aim at a different target altogether). But there's nothing in the law that prevents a satire from being a fair use depending on the overall circumstances. It's just a little harder to show.

Comment: Re:Characters can be trademarked (Score 1) 222

by cpt kangarooski (#49177497) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

No, he was right. It's not the character that's copyrighted per se -- though it can be a useful shorthand to talk as if it is -- it's the works containing the character that are copyrighted.

Using the character is no different from using any other part of the work that the character appears in.

Also trademarks are inferior to, and no substitute for, copyrights. When the copyright for Steamboat Willy ends, a significant amount of the trademark protection for Mickey Mouse will end with it. This is because the use of a trademark indicates that all such marked goods originate ultimately from a common source. If anyone is allowed to make new works which are derivative of public domain Steamboat Willy, as copyright permits, the MICKEY MOUSE trademark for such works cannot serve to indicate a single source. Therefore the trademark suffers genericide.

The mark can still survive in other contexts -- Peter Pan is both a public domain character in the US and also a trademarked brand of peanut butter and intercity bus services -- but the copyright does some serious damage to it.

Look into the Shredded Wheat case for a similar situation involving the expiration of a patent dragging down a trademark, and the Dastar case for trademarks not being permitted to serve as a substitute for copyrights.

Comment: Re:Bennet is wrong (as usual) (Score 1) 222

by cpt kangarooski (#49177461) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

If there is no original footage, there can be no copyright violation on the original works.
Fan-fiction, whether the author allows it or not, is not part of the original author's copyright. The author has legally no say in what other people can and cannot write (and any legal decision that says they do is unconstitutional).

It's a derivative work. Copyright includes an exclusive right to prepare derivative works. Good luck with your argument about it being unconstitutional.

Comment: Re:Just what we need.... (Score 1) 222

by cpt kangarooski (#49177399) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

I don't want to see a rageful, murderous Spock.

Well, while I would say it's a classic, I would advise you not to watch Star Trek episode 30, "Amok Time," which features a rageful, murderous Spock.

I don't want to see a Superman film that makes me want to kill myself.

Also skip Superman III and Superman IV.

Comment: Re:TOTALLY fair use (Score 1) 222

by cpt kangarooski (#49177313) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

But the copyright that we're talking about is not a copyright on the original work, it's a copyright on the characters.

Technically there is no copyright on the characters standing alone. The copyright is on the work the characters first appear in. (Or for later traits of the characters, the works in which those traits first appear) When you use characters, you're really making a new work which is derivative of that part of the previous work in which the characters are defined.

Character copyright is just a sort of shorthand for this idea, but it's not a distinct thing.

Comment: Re:Parody (Score 1) 222

by cpt kangarooski (#49177273) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

Any one alone wouldn't be fair use

Possibly not in this case, but fair use is not applied in a strict way. Consider time shifting: It's not creative, it uses fictional works, it uses all of the work, but it doesn't materially harm the market for the work. Only one of the four factors is in favor of fair use, but time shifting is generally considered to be fair.

Comment: Re:Hmmm (Score 1) 222

by cpt kangarooski (#49177073) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

That argument only makes sense if you've downed a fifth of Jack and snorted a couple of grams a coke - or if you're completely and totally ignorant of the law.

And yet it made sense to me, and I'm sober as a judge for some reason.

There is no mechanism I am aware of for a copyrighted work to become generic. It can be formally released into the public domain, but that's another issue and is not applicable here as no such formal release has been made.

Well, works can also enter the public domain through other mechanisms, such as most famously having the copyright term expire.

But the earlier poster didn't say that they might become generic, he said that they might be generic. This would be the scenes a faire doctrine. I haven't watched the show, but I recall that it's a 5-person team, so I'd bet that they fall neatly into what TV Tropes calls the Five-Man Band:

The Leader -- The leader of the group. Can be a mastermind, charismatic, levelheaded, headstrong, or some combination of the four. Often also The Hero.
The Lancer -- Usually a contrast to The Leader. If the Leader is clean-cut and/or uptight, the Lancer is a grizzled Anti-Hero or Deadpan Snarker; if the Leader is driven and somewhat amoral, the Lancer is more relaxed and level-headed.
The Smart Guy -- The physically weak, but intelligent or clever member. Often nerdy and awkwardly played for comic relief. Sometimes unconventionally young (early- to mid-teens). Sometimes a Trickster and a buddy of the Big Guy.
The Big Guy -- The strongman of the team. May be dumb. Or mute.
The Chick -- A peacekeeping role to balance out the other members' aggression, bringing them to a nice or at least manageable medium. The Chick is often considered the heart of the group. This role is played by a woman or girl. Someone female. Otherwise, it is not a Five-Man Band.

This is a stock description of characters. Anyone is entitled to use it, regardless of whether the first work to use it is still copyrighted, and regardless of whether people are copying it from other copyrighted works. It's like how everyone is entitled to use a spooky eastern european castle, with moon-baying wolves, in a movie about vampires.

Now, if the Power Rangers characters are more defined than this, and if the use involved their more defined, non-generic character traits, that could be an infringement. But if Power Rangers doesn't do much character development and is more like a modern version of commedia dell'arte, where it's just about how the lovers will enlist the help of the servants to marry despite the wishes of their parents, and so on, but with robots and karate, the characters might well be considered generic.

Real Users never know what they want, but they always know when your program doesn't deliver it.