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Wednesday, April 21, 2010

The Downfall of Downfall Parodies?

YouTube fair use

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.

10 comments:

  1. You are on to something Mathieas! That's a great idea for future collabs...producing fair use parody footage for meme use. It just might work!

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  2. awesome vid mathieas.

    i think part of the joy of good "remix" parodies is knowing they are kinda underground and maybe illegal (like music mashups), then everyone go can crazy and go protest when they get removed.

    i am not expert in fair use, but i think when you post 3-4 minutes of a movie verbatim on youtube, and just add some silly subtitles to it, that's not really what "fair use" is. of course everyone just says "sounds fair to me"

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  3. Hey Jenni, I hope you liked your mention in the video. :)

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  4. There is a recent case out of California that discusses fair use at length, Gaylord v. U.S.
    (595 F.3d 1364) for those looking for a little more info on fair use.

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  5. I am sure I would have enjoyed it...alas, YouTube has removed it.

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  6. Oh and, ironically enough, streaming media is blocked at my day job...will watch the direct embed when I get back to the land of open internet. :)

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  7. "Simply drop it into your favorite movie editor, add in some subtitles, upload it"
    And you wonder why they see this as copyright infringement.

    "Hey! I added subtitles! It's totally an independent work that parodies the original!"

    Then again, you could just use such obscure sources like Wikipedia to get a layman's explanation for why exactly Fair Use doesn't apply:
    "These fair use cases distinguish between parodies (using a work in order to poke fun at or comment on the work itself) and satires (using a work to poke fun at or comment on something else). [...] The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work."
    The Downfall videos don't poke fun at the movie itself. In fact, they care so little about the movie itself, they don't even remove the original audio track. If you know German, all you have to do is ignore the subtitles and you have the completely unchanged movie scene in front of you.
    The usage of Downfall material is not because the "artists" are going for any kind of artistic examination or exposition of the scene, it's because it was the most current, most easily available and most popular "Hitler" footage at the time of creation.
    Maybe the very first "parody" would qualify, since it was actually a "what if...?" situation, it actually required a certain spark of creativity, and it was a conscious choice to use that particular scene from that particular movie.

    But everybody else? They didn't choose downfall for an artistic need to parody it - they "[s]imply drop[ped] it into [their] favorite movie editor, add[ed] in some subtitles, upload[ed] it".
    Because it's a meme. A brainless series of repetitive jokes. No artistic work.

    In addition, the vast majority of these videos are, indeed, used for "broader social critique", such as DRM, Xbox Live service quality, or, in fact, Downfall video removal, which could all be expressed in other form, as this very article proves.
    Thus, the meme also qualifies as satire independently from not qualifying as parody.

    Of course, there are also fun lines like "To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative."
    But I guess that's irrelevant - because, clearly, "Simply drop it into your favorite movie editor, add in some subtitles, upload it" is sooooooooo transformative!

    So let's see:
    - The completely unchanged scene is used, save for added subtitles.
    - Google/YouTube have a German representation, the US are party to international copyright agreements, and German "copyright" law is different, making it very possible this was handled under German copyright considerations in the first place.
    - Even if one applies US copyright law, the Fair Use test fails both based on the very nature of the work, as well as its execution.

    This was a perfectly normal legal action against copyright infringement, and anyone who claims there are grounds for "Fair Use" apparently didn't even read the most basic available information about that clause.

    This is just another fabricated controversy by internet kiddies pissed off that real-world laws still apply on the web.

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