Listen to my podcast where I talk with with guest intellectual property attorney Mark Rosenberg, about why the multitude of video clips on YouTube taking a scene from Constantin Films' 2004 film, Der Untergang ("Downfall"), don't meet the criteria for fair use under U.S. law.

Hitler Memes On YouTube Aren’t Legally Protected Parodies grant youtube hitler rant If you follow online video like we do here, then you're likely already familiar with the news of how YouTube recently begun removing videos that feature content from Constantin Films' 2004 film, Der Untergang ("Downfall"). What I found peculiar was a statement by some journalists who argue that the memes are legally protected under fair use.

Even my fellow blogger at ReelSEO, Jeremy Scott, has argued along with others the memes would be helping the film commercially with the publicity, and that the movie producers were short-sighted to have them removed from YouTube.

Because this topic has generated a lot of discussion, especially on our own comments area at ReelSEO, I thought that this issue could really use an intellectual property lawyer to explain more about what constitutes legally-protected parody. The following is my interview with our regular legal expert and attorney for this show, Mark Rosenberg, Intellectual Property attorney for Sillis, Cummis & Gross P.C. out of New York.

The criteria for parody

Mark explains that when dealing with parodies, four different factors have to be considered for meeting the legal criteria of fair use under U.S. fair use law:

  1. The purposes and character of the use - whether it's for commercial or non-profit/education purposes.
  2. The nature of the copyrighted work – is it newsworthy in nature, an informative work, or a creative work (like a movie)?
  3. How much of the work is taken – is it a small clip, the entire work, or a sizeable clip that could be a standalone piece unto itself? For a movie, even if what's being taken is just a scene from the movie, perhaps it's crucial scene with a particular impact on, or disclosure of, the whole story? And;
  4. The potential effect on the market of the copyrighted work, which is impacted by the parodied work. For example, if the parodied work causes a significant deterioration in the market value of the original copyrighted work, there may be a problem there.

Why the Hitler "Downfall" memes don't merit fair use

As we've covered here many times at ReelSEO, fair use also involves that the remixed work (in this case, a video meme), needs to really be a transformative work. Even if just adding new captions and subtitles to an clip from a movie about Hitler can prove to be funny, just how transformative are they really being if that's all they're doing?

According to Mark, very little.

"In a movie particularly that had text subtitles to start out with – being that this is a German movie filmed in German, shown in the U.S. with English subtitles – the transformative nature is very small." Says Mark. "That's one of the big problems with the Hitler Downfall memes. If you only adding your own subtitles, you're really not changing the original work.”

YouTube is not the government

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This is also a business decision by YouTube. They don't want to get in the middle of a fight as to whether its protected fair use or not.

"There's no arguement against the fact that the movie is copyrighted and owned by the production company." says Mark. "And because there's no bright line with parody and the fair use of parody, YouTube is saying basically, that they don't want to get involved and put themselves at risk of being sued by the movie production company that owns the copyright, and argue as to whether its protectable fair use."

How to do a video meme that is fair use

I asked Mark, it possible that a video meme could have been done differently on this particular movie clip, that would have been protected under U.S. fair use law as it applies to parody?

"Possibly. But the memes here are all comedy." Says Mark. "And some of them are quite funny. But the movie is not a comedy, itself. In fact, it's a very serious movie. And to be associated with comedy is something that the movie producers didn't want to do. So a meme of that nature actually hurts the movie, and hurts it's commercial value.”

"Now if the meme was being used to criticize how accurate the movie was with history, then maybe that would be different. But when you're turning a serious dramatic work like Downfall into a comedy, it's understandable to see why the movie producers were not appreciative of that.”

Aside from how transformative a work a meme actually is, people just need to be aware that there may be issues of sensitivity involved. Especially in this case, since this is a German movie and Germany's own issues and laws with Hitler and the Holocaust, and several Jewish organizations being very upset. So its understable why that would make movie producers of that country more apt to have issues with others turning a serious movie clip on Hitler into a YouTube parody.

But of course no one right now is being stopped from doing Hitler parodies, or even parodies on the Hitler Downfall movie. This just shows that if you're really committed to doing a parody of something on video, put more effort into it. Act it out or get actors, or mash it up with other video clips or graphics, and even make your own commentary as it actually relates to the movie. For example, I did my own web video on Michael Moore's movie, "Capitalism – A Love Story," which would arguably fall under fair use protection by U.S. Law. (And it's a satire!)

  • Dr. Strangelove

    I have argued in the book cited below that the Hitler Downfall parodies are of great cultural and political significance. I think that when all this blows over there will still be thousands of Downfall parodies on YouTube.

    Dr. Strangelove
    University of Ottawa
    Author of Watching YouTube: Extraordinary Videos by Ordinary People (University of Toronto Press, 2010)

  • The Bagman

    The problem with copyright law in its current form is that even for cases that are unquestionably fair use, the mere threat of a lawsuit is enough to scare most rational people into not expressing themselves. Even if they have a 100% chance of prevailing with a fair use defense, it's just not worth it to litigate.

    Specific to this case, there's certainly an argument that this kind of video is a fair use of the Hitler scene. If I were defending the parodists, I'd argue that showing silly captions under a melodramatic scene pokes fun at the melodramatic staging and so forth. The use is plainly noncommercial, and I have trouble seeing how it reduces the market for the original work. The argument mentioned above ("serious scene made ridiculous") seems pretty unwise to raise in court, since that implicitly concedes that the work is a parody.

    But I'm not 100% convinced that these arguments would prevail in court. I don't think a completely similar case has ever been litigated (but I could certainly be wrong here). But again, that's because it's unlikely to be worth someone's time to actually litigate a case like this. As mashups become more and more prevalent, the law really needs to be amended to specifically allow for this sort of thing.

    • Matches Malone

      You bring up some interesting points here, Bagman. Your last paragraph is what I have trouble with. Mark doesn't go into how the DMCA would apply as it should, as it creates a new category of original derivative work, similar to what exists in American Copyright law, previous to 1998, before the DMCA was enacted, for works that exist on the web. I don't know the original facts of what is yet to be a court case, or a request for removal from the German production company, however, the law as you suggest, has supposedly already been amended, as you suggest.

      • The Bagman

        I should've been more specific. The law does allow fair use. This video is arguably fair use. The problem, as I said, is that the law, whatever it actually wants to accomplish, has the effect of scaring anyone away from mounting a fair use defense, since it's just not worth the cost to litigate. The law needs to be amended to provide strong affirmative protections so that people who create new content based on fair use need not fear that they'll be sued into poverty for it.

        The DMCA does provide for the mashup creator to say "hey, no, it's fair use, put it back!" But the next step after that is to get sued by the original copyright owner. The DMCA doesn't provide protection against that. What the DMCA does do, however, is make it illegal to decrypt a DVD to extract that scene, even for uses that are plainly fair. The DMCA is a complete disaster in the eyes of just about every copyright reformer.

  • Me

    So, taking something that someone says in text, and totally changing what was said isn't transforming the original work? Just because it used subtitles in the original? So when you make a parody of something, and edit the sound to make something totally diffrent from the original isnt transforming the original work? I've not seen this movie, but seeing as it was made in German and what not, then the original wouldnt be considered to have subtitles would it? I'd like to see this go to court, because it smells of horseshit to me.

  • Cuthbert

    "the transformative nature is very small" - is that an opinion or a fact, I think it would need to be ruled on.