This week YouTube began removing several of its most popular videos. For the past several years, parody videos based on the German movie Downfall have spread across the Internet; however, YouTube has begun flagging them for copyright infringement, despite the fact that many feel that the videos fall under the protection of the fair use doctrine. Whether or not this will halt or encourage future parody videos remains to be seen.
Most of the parody videos center on one particular scene in an underground bunker, where Hitler, having been told by his generals that the war is lost, flies into a tirade. The audio is usually left in place and subtitled to fit whatever the creator is attacking. At one time there were over 100 various Downfall parodies online. Videos have ranged from focusing the recent Presidential election to the launch of the iPad. In an interview with New York Magazine in 2010 the film’s director Oliver Hirschbiegel stated, “Many times the lines are so funny, I laugh out loud, and I’m laughing about the scene that I staged myself! You couldn't get a better compliment as a director.”
Once before in 2008, Constantin films, the Germany company that holds the rights to the original movie, successfully managed to have several of the videos removed through DMCA. In this instance, YouTube’s Content ID program is mostly likely responsible for the video’s removal. The program requires rights holders to submit reference files that YouTube then uses to check uploaded videos for infringement. The system is automated and dependent upon checking uploaded video against existing reference files. In fact, YouTube flagged my video within 10 minutes of uploading it. Several of the most popular parodies were removed; however, many more still remain. After all, a good meme is hard to kill. In fact, the recent attention will undoubtedly lead to further Downfall videos.
The most commonly sited defense against copyright infringement is the fair use doctrine. Fair use is an extremely complicated issue, which has been applied inconsistently across jurisdictions; however, courts have historically given parodies more latitude than other works claiming the fair use defense. A few of the key issues to examine are whether or not the derivative work is for a commercial or noncommercial use, its effect upon the marketplace and whether or not it is a transformative work. The folks at the Electronic Freedom Foundation believe this is a clear case of fair use; however, they tend to think just about everything is fair use.
If one wishes to make their own Downfall parody video doing so is relatively easy. Various clips from the movie are available here. Simply drop it into your favorite movie editor, add in some subtitles, upload it and wait to see how long it stays before YouTube flags it. Perhaps the best solution, which would avoid any further copyright problems, is to create a new scene, inspired by the original that is freely available for parody purposes. This could be a fun YouTube project. Imagine your favorite YouTubers decked out in their finest NAZI apparel, machine gunning pseudo German back and forth; that video alone would be a classic. For the role of Adolf Hitler, I would definitely recommend Shane Dawson.
The future of copyright law in the digital age is of importance to everyone. The removal of a few YouTube videos may not seem important, but it might have far-reaching implications. Every year precedent is established that will shape the course of law for decades to come. Also, most of them are extremely funny, and it would be a shame if they disappeared. Speaking of which, check out my Streamy Downfall video directly below.