“Downfall” Spoof Videos and the Protection of Satire from Copyright Violation
["Best of Chicago Art Magazine" re-post. Originally appeared 5/24/10]
Kathryn Born
Downfall
“Ask a Lawyer” is a series that’s emerged because we have a lawyer friend on hand, Cara Dehnert Huffman, J.D., who is willing to take a stab at tackling issues in the arts that arise. (See disclaimer at bottom).
So we were in the midst of talking about how satire is immune from copyright, when I heard the Downfall spoofs have been removed from YouTube.
The Videos
Downfall is a German film about the final weeks of the Hitler Regime, (one of the final scenes involves Hitler’s suicide). The subtitled clip that’s been spoofed surrounds Hitler flying into tirade at the height of his demise - he gets bad news, struggles to remain calm while he asks people to leave the room, insert of a close up of a map — and then Hitler totally loses his cool throws a tantrum.
So first the geeks took over, and if you know technology it’s based on the flaws of AGILE software development . So the tirade is now the lack of bug fixes since Iteration #3 and not the loss of a war effort. But then more people swapped out the subtitles – Hitler throwing a tantrum about Sarah Palin being picked as McCain’s running mate, the housing crisis, the iPad. Even finally, a Hitler tirade about the YouTube Downfall videos being pulled down.
Satire vs. Spoof, YouTube and the Law
So if satire is protected under fair use, why did YouTube pull them down? I (Kathryn) know the short answer – YouTube invokes the Digital Millennium Copyright Act, which was a knee-jerk-reaction-act passed by Bill Clinton. Also, YouTube is busy and doesn’t want the hassle. That’s the real reason. But corporate and branding prerogatives aside, what’s the legal protection for these videos?
Q: Cara, have you seen any of these? After we talked about satire’s immunity to copyright, why aren’t they protected?
Downfall spoof (screen shot)
Q: But what’s the difference? Why would YouTube feel the need to pull it from their site when everything on there is some form of satire?
A: This is a loaded question and I could write pages on it. But for brevity’s sake, I’ll keep it as short as possible. When it comes to parody vs. satire:
A parody must comment or criticize on the original. Whereas,
A satire uses the original as a vehicle to create some third, unrelated message.
With parody the defendant must borrow a large amount for it to successfully communicate its message to the audience. In other words, the audience must “conjure up” the original in their minds. Normally, this would weigh against the infringer; however, the Supreme Court made an exception for parodies. Therefore this factor would weigh in favor of the defendant rather than the plaintiff.
That does not mean that satire absolutely cannot be fair use – it can. But it must be put through the four-factor fair use test like any other work. And unlike parody, if a work of satire borrows too much from the original, the amount and substantiality factor will be awarded to the original author rather than the infringer claiming fair use.
Note that a parody is not guaranteed to be a fair use. Parodies must still be put through the entire test and all factors balanced. But, parodies are awarded the amount and substantiality factor while all other works that borrowed too much would lose it.
As for the YouTube question, that is because of the immunity provision of the Digital Millinium Copyright Act (DMCA). Generally, anyone who furthers copyright infringement is liable, not just the original infringer. However, because of the DMCA, online service provides (like YouTube) are granted immunity so long as they pull infringing videos down upon being notified by the copyright owners. Obviously there is a lot more to it than this paragraph explains. (Note: see this article for more info on the difference between parody and satire)
Downfall spoof (screen shot)
Q: But it’s interesting in this case because they use the original, while at the same time creating a totally different meaning with the content.
A: As it just so happens, that is the definition of satire. Remember, a parody must be commenting on or criticizing the original, not creating a 3rd unrelated message using the original.
Q: So it seems to me that the issue became satire that didn’t refer to the movie’s plot itself. In the end, I think YouTube pulled it down because that’s what they do when big companies make a charge of infringement. They don’t want to deal with it.
A: YouTube does not have a choice. If the owner contacts them and satisfies certain requirements per the DMCA, then YouTube must pull it down to maintain its immunity. Whether the video would qualify as a fair use or not is between the original work’s owner and the owner of the parody/satire, not YouTube.
Next time: A break down of fair use with a closer look at the four-factor Fair Use test and how the courts use it.
Disclaimer: This article is meant for general, informational purposes only and should not be used in lieu of professional legal advice for individual circumstances. Every situation is unique. If you need legal advice, please consult an attorney. This article in no way establishes an attorney/client relationship between its author and reader.
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Hmmm.
Not being a lawyer, I obviously cannot argue with your legal analysis, but, as somebody who both studies and writes satire (as well as other forms of humour), I would like to offer some comments on this issue.
Satire is not a form of humour on an equal footing with parody; in fact, it is an art form that supersedes other comic forms. To be brief, satire is made up of three elements: an ostensible subject; an object of attack, and; a comic device. The ostensible subject is what, on the surface, the work appears to be about (in the case of Jonathan Swift’s classic A MODEST PROPOSAL, it is the selling of poor Irish children to wealthy Britishers for food). The object of attack, which usually lies under the surface of a work and has to be teased out by the auditor, is what the artist is actually trying to say (in Swift’s case, that Parliament was an ass for rejecting all reasonable measures to deal with the problem of Irish poverty).
The comic device is exactly what it sounds like: the part of the work that makes it funny. Satire can employ any comic device, including parody. In A Modest Proposal, the comic device is exaggeration that pushes the boundaries of good taste. The film BOB ROBERTS, to use a different example, uses parodies of Bob Dylan songs and videos to satirize faux populists politicians.
And, yes, that was a short explanation.
Using this definition, it would seem to me that the DOWNFALL videos are not satirical; they do not seem to be making any deep comment. In fact, they seem more to fall under the definition that “Parody is just pure entertainment and nothing else” that appears in the article you link to.
It occurs to me that the following argument makes sense: when satire doesn’t use parody as its comic device, copyright law should not apply. On the other hand, when satire DOES use parody as its comic device, the parody exemption in copyright law should apply. Either way, satire should be completely protected speech.
Anybody want to argue it before the Supreme Court?
Ira, you seem like a brilliant guy, so my only question is why you’re not writing to chicagoartmagazine@gmail.com and talking about writing satire for the site. I guess that’s my only question.
After that, I just want to throw 2 random elements in on top of your argument. I agree with everything you say. But I also think one — hang with me, I’m going to go with this — but I think this spoof begs some interesting and important questions. Among them the history of “Hitler comedy”. We were talking about this, along with “the Producers”, which was maybe the first comedy involving Nazis – and I think there is a larger question and evolution about the tone required for certain subject matter. I also think the public’s relationship with the Holocaust is changing and flip treatments of a serious movement indicate something deeper. So we could talk about that, but I just wanted to throw that out there.
The second thing – I feel like mashups and alterations are a genre that deserve some protection as a new art form. I mean, in the wonderful world of appropriation in the arts, this is certainly making a “new work” out of it. My husband is into these “Smooth Jazz Metallica videos” http://www.youtube.com/watch?v=OBmM79YadYM and you could find more examples of re-editing, mashups and mis-appropriated “stuff” on the internet than almost any other art movement on the planet right now.
But just because there are few professional practitioners fighting for their rights, and they have an unstoppable distribution system anyway, it stays in this weird place. Even though you can argue that it’s a dominant new art form, it hasn’t yet entered the cannon.
Ok, I’m back to work.