Sometimes the world just seems upside-down.  Case in point:  YouTube has begun the daunting task of removing all the clips of the movie Downfall (the now-infamous Hitler-getting-mad clip) due to a copyright claim from Constantin Films.

That is exactly the opposite of what most online marketing consultants would advise Constantin Films to do.  Why?  Because of all the free publicity that this Hitler meme has brought their little German-language film.  How many people are aware of the movie now that wouldn't have been had they not seen one of the parodies on YouTube?  How many more people have then gone and watched the original film?  My guess is that it's a lot.

There is no threat to income for the studio, as the parody clips aren't being sold—though I imagine some of the uploaders have placed ads on their clip.  There is no chance of anyone mistaking one of the parody clips for the real thing.  I just can't put my finger on a logical reason why Constantin would take this step.  Unless it's Opposite Day.

One of the most widely-accepted truths of celebrity and fame is that when your little artistic creation accidentally stumbles into the spotlight and soars to popularity you never conceived of… you ride that train, you don't sabotage it.  This is akin to the copyright holder of "Never Gonna Give You Up" demanding that YouTube pull the Rick-Roll video… just wouldn't make any sense.  Granted, that video was removed two months ago, but it ultimately proved to have been a mistake on YouTube's end and not a copyright infringement issue.

I guess maybe I'm operating on some assumptions.  I assume, for example, that Constantin Films is in business to make money off their films.  I assume that in Germany (as in the U.S.), the more people that see your film, the more successful you are as a film studio.

This isn't a personal video from an individual who suddenly wants anonymity back—in which case a copyright notice takedown would make sense.  This is a movie studio, in business to try and get a wider and wider audience for their movies.  Heck, even the director of the original film gets a kick out of the spoofs:

"Someone sends me the links every time there's a new one. I think I've seen about 145 of them! Of course, I have to put the sound down when I watch. 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."

I should stop for a second and make a confession: I was ready for the end of these Hitler parody videos to come.  It was long overdue.  A part of me is thrilled that I won't have to see another in a line of thousands of clips making the same jokes in different ways.  Ooooh, Hitler's angry about something silly.  Hilarious the first few times… and hardly worth a chuckle since then.

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But I am not Constantin Films.  I am a user… a viewer.  Even the best jokes get old when they're run into the ground.  But there's no denying that a large portion of the public loved these videos, and they were racking up the views.

If you work in technology consulting like I do, you've no doubt had at least one encounter with a client that seems insistent on doing the wrong thing, despite your expert advice to the contrary.  That has to be what's happened here.  Somewhere in Germany there is an exasperated Internet Marketing consultant banging his head against a boardroom table.

Even if the studio chose to be offended by the overuse of the clip, they could still have used the Content ID system to claim their copyright and place advertisements on the many parodies.  That way you make some revenue at the same time you're piling up fans.   It's interesting to note that there is some debate about the studio's legal right to even have the clips pulled at all, since they constitute parodies, which have some extra protections from standard copyright law.

I'm not surprised by the move—entertainment production companies have demonstrated a hard-hearted attitude when it comes to embracing the web and its sharing capabilities.  But it's still the wrong move.  There are millions who are aware of your movie solely because of these parody videos—your movie is famous.  Having the clips pulled is just a fast track back to obscurity.

Here's the real question in all this:  is there enough time—while YouTube is still removing clips—for one final Downfall parody to go viral?  A Downfall parody where Hitler gets upset about all the Downfall parodies infringing on his copyright is a pretty decent candidate in my book:

  • Mememonster

    Two words - Streisand Effect

  • moltar

    I even emailed the film company a few weeks ago and asked them to stop doing this. It's retarded. They are shooting themselves in the foot. I've never heard of the film before the parodies. I was seriously considering renting it, but now no more!

  • Guest

    They may be shooting themselves in the foot or they may simply be kick starting the whole thing again by the action given the 'noise' surrounding their actions in blogs world wide.

  • Grant Crowell

    Hello again, I encourage you all to check out the follow up piece here on ReelSEO – "Hitler Memes on YouTube aren't legally protected parodies."

  • Grant Crowell

    Just today I interviewed an attorney who provide some special insight into the legal and commercial aspects of this issue, accompanied with international law. We'll try to have a post on that tomorrow (and hopefully a podcast show).

  • Julie K

    I think another consideration might be that it is a German film company, and it is a parody of a film about Hitler. Germany has a number of laws on the books around things like Holocaust denial, and have considerable cultural sensitivity surrounding WW2 and Hitler as leader of the German nation in that time. Those sensitivities could easily override what you might see as marketing value.

    • Mark Robertson

      That is a very good point. Thanks for sharing Julie.

      • Jeremy Scott

        Yeah. I agree. It's impossible for me to put myself in the mindset of how a German person would react to this, and there may be cultural sensitivities I can't understand at work behind the decision. Though, I would argue that if the film company wants people to watch their movie, then having these parodies pulled is counterproductive to that goal. They may just have a moral compass guiding the decision that makes sensitivity much more important than publicity. Good call.

  • Grant Crowell

    As someone who deals with intellectual property issues concerning IP video, I can share this: "fair use" is really a question of whether the new use of an original work is truly an original work in itself. If all you are doing is putting in new subtitles over a long video clip that's unedited and not really being remixed, then it could be assessed to not fall under "fair use" as YouTube's legal counsel has probably advised them. Because the videos reside on YouTube, YouTube can make this argument in its removal of all parodies that follow this format – which is basically totally unedited video and just subtitles. (What if I just added YouTube annotations to an original video clip? Same thing, right? I couldn't cite "Fair Use'" for just doing that, but this is basically the same thing.

    Also, it was reported today in the Associated Press that Martin Moszkowicz, head of film and TV at Constantin films in Munich, disputed the idea that all the attention to "Downfall," which grossed $5.5 million at the U.S. box office and was nominated for a best foreign language film Oscar, had helped the film.
    "We have not been able to see any increase in DVD sales," he said. "There is no correlation between Internet parodies and sales of a movie, at least not that I am aware of."

    But now here is what's particularly interesting: Moszkowicz said he didn't know why the videos were only recently taken down and suggested that it could have been "something on the YouTube end."

    Now if its really that important for you to feature a parody that's just basically new captions over the original video and cite "fair use," then host it yourself, away from YouTube. YouTube is not the government nor are they the Internet; they can ultimately choose what to remove from their site, as you can from your site as well.


    • Jeremy Scott

      Thanks for the added insight. Good stuff. I was skeptical that these parodies could really be protected by the fair use claim.

      I'm not sure I'm willing to believe the guy when he says the clips haven't helped the film. I certainly don't have any hard evidence, but I do know about five people personally who have gone and rented the film since seeing the parodies (they all liked it). DVD sales is not the only way to be helped by the parodies... just good old-fashioned "brand" awareness. Just because you can't draw a line from the YouTube clips to your bottom line doesn't mean they're not helping raise your profile.

      • Grant Crowell

        Yes, and we realize there's a difference between what are legal rights and just good marketing sense. However, if the memes aren't making proper reference to the original movie, then are people really going to be interested in checking out the original movie? If that could be demonstrated in terms of increase in visits to websites that have the movie available, then we could see a pattern. However, it's entirely possible that because of the publicity, some people will now be more aware of the movie and check it out. We don't really know one way or the other.

        • Jeremy Scott

          You're right. There's no way to know for sure that the parodies are a good thing for the film company. But there's really no denying that it's raised the film's profile--how many prominent news sources have used the word "Downfall" or "Constantin Films" in major stories and headlines just this week?

          There are other kinds of value to consider as well, such as any links that have been generated over the last two years to the film company's site--some SEOs would say those are more valuable than measurable DVD sales might be, at least in the long term. There is some inherent publicity value being driven by the parodies. Just no way to know if that actually translates to the bottom line for them in any way at all.

    • Guest

      I would argue it's fair use for a couple of reasons:

      First, changing the subtitles is changing the dialogue; this would be just as much a parody as it would be if someone got several voice actors and created brand new voice dialogue themselves. In any case, a parody is a parody, and parodies are protected as fair use. (Indeed, Mystery Science Theatre 3000 did an entire *series* of parodying films--mostly by making fun of them!--which is even a step away from changing subtitles.)

      Second, it's fair use in that it's a small clip from an overall movie. The clip in its entirety (unless the movie was ten minutes long--which I doubt) could be used in history classes, in online articles, and so forth, if a certain point needed to be made.

      Furthermore, having said all that, Jeremy is completely right, free use or not: all this clip is doing is ginning up publicity for the movie. It doesn't matter if the title isn't displayed. I've been interested in watching the movie myself. I haven't pursued that interest, but mostly because I don't have the time to do so.

      One thing's for certain, though: I cannot see how watching a little clip of this movie is going to take away overall profits! I would never have had any idea of the existence of this movie without this clip, and watching this clip is certainly not going to satisfy my curiosity about the rest of the film.

      The more I have learned about both copyright and patents, the more I've come to decide that they are evil. They aren't even necessary evils! But trying to explain that would take too much time here. (Just google "Against Intellectual Monopoly" for a good start on an explanation.)