” It was truly a marvel. But it really wasn’t fair use. As fan fiction, few reach the level of sophistication of the Kahn film. But if that fiction goes against the brand of the art in question, the copyright holder should have the right to have it removed, no matter how annoying or frustrating it might be even to the very fans for which it was made. IMHO, we as artists should actually be defending that right, not fighting against it (as many people did when Vimeo first took it down).
Ultimately Saban and Shankar/Kahn reached an agreement to reinstate the film if a disclaimer was added. I actually think that’s was pretty generous on the side of Saban. (And based on the dismal performance of their official Power Rangers movie, they may want to look into Kahn doing a feature-length version of his fan movie. One that is more kid-friendly, of course).
The last of the big five areas of fair use scenarios for filmmakers I want to cover is music. Oh boy. This will be fun.
No area of confusion on this issue is perhaps more misunderstood than music. You need look no further than the hundreds (if not thousands) of professionally shot wedding videos edited with copyrighted music. Or the countless epic short films on YouTube with Hans Zimmer or Michael Giacchino “scores.” Many novice filmmakers assume that if a video is “not for commercial purposes” and/or if the music was purchased on iTunes, then that clears them or their conscience. Unfortunately, it doesn’t (well, it may clear their conscience, but it definitely doesn’t clear them legally).
Music does indeed fall under fair use, and so your use of it must also fit within the parameters mentioned above. The problem is, most of the use of music in such film and video is a copyright violation. They use someone else’s music, unlicensed, in the manner for which it was originally purposed. There is no transformative use or commentary on the music itself.
In order to legally use music in your film or video, you need two types of licenses: a master (also known as mechanical) use license (controlled by the record label) and a synchronization (or sync) license (controlled by the publisher). The mechanical use license gives you rights to the song from the originator; the sync license gives you the right to the specific version of the song and set it to a film or video. In many cases, the same company represents the publisher and the label. But if they don’t, you’d have to arrange for licenses with each entity separately.
Years ago, The Harry Fox Agency was a centralized resource for getting all the appropriate licenses for use in films. They have since given up managing sync licenses and focus on mechanical use licenses.
Raising the stakes
Within the past 7 years, record companies have raised the stakes when it comes to illegally using their music. Two wedding videographers I know personally had rather high-profile public lawsuits by EMI when wedding videos they produced for celebrities went viral. As most wedding videos do, theirs had copyrighted music. Each settled out of court for amounts in the 5-figure range; that’s A LOT of money for a small wedding filmmaker to shell out. If you are a wedding and event videographer, don’t risk it. Fortunately, there are alternatives to using music illegally.
Music License Alternatives
Unless you have a huge budget, you will not be able to get popular music for that really cool short film or feature film. Thankfully, there is a growing number of sites where you can legally license music from a wide variety genres. Some of these sites even have mainstream popular music.