Until Taken Down, Best Demonstration of Fair Use Yet

As you may know, Constantin Film AG has not reacted well to the tide of parodies (re-subtitled clips of Hitler's outburst scene) based on their 2004 film Downfall. In fact, Constantin Film AG has repeatedly sent "takedown" letters to YouTube - threatening a copyright claim against YouTube unless the parodies are removed from YouTube's servers - even though the copyright law is plainly on the side of the parodists (as Weird Al will tell you, it is settled law that you don't need permission from the owner of a work being parodied to copy portions of the original or to distribute your parody version).

In this latest clip, Hitler reacts to the news that YouTube is taking down perfectly legal videos under pressure from Constantin Film AG. As with the other parodies based on the original 2004 film, the portions of the underlying work used here have been transformed by the addition of clever subtitles. In this version, the subtitles are by Zacqary Adam Green.

How should YouTube's legal department react to a takedown letter? In my view, when subtitles add another layer of meaning (scoring both comic and ideological points) while commenting directly on the copyrighted work - YouTube should tell Constantin Film AG that the filmmaker does not need permission and the video will remain on YouTube.

The kind of comic twist on an original work - known as "parody" - has historically been an exception to the copyright laws, allowing the authors of the parody to take quite a bit from the work that is the subject of the comment without the need to ask for permission. Specifically, under the so-called "Fair Use" exception, no permission from Constantin Film AG is necessary for the copying, revision and/or distribution of the portions of Downfall that have been used in these Hitler parodies.

There is a larger point here. Taking down parody videos - just because the author of the underlying work is unhappy - ignores a small but important liberty that authors have fought for over the centuries. The right to make fun of (and even shame or mock) an existing work is one significant way in which our culture moves forward.

YouTube owes its filmmakers everything. Think about it. YouTube has become wildly successful because, for the first time in the history of filmmaking, filmmakers no longer need to ask anyone's permission to distribute their films. Still, instead of defending the legal rights of its users (e.g., to make parodies, fan films and remixes) - YouTube routinely caves-in to big media companies.

In my view, a little bit of our freedom is lost when YouTube takes down a parody video.

Under the current law, YouTube can't ignore a written takedown request from Constantin Film AG, but they could create a process whereby filmmakers posting videos that they feel are entitled to protection as parodies - could fill out a simple "Parody Form." Then, once a video qualifies as a parody on YouTube, YouTube could require more evidence of an infringement before acting on a takedown letter.

To his credit, Zacqary Adam Green has expressly waived all copyright in his derivative work. Bless him.

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