“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


“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)

A:  I have not, and I don’t know what German copyright laws are, but in the U.S., parodies enjoy more protection under the doctrine of Fair Use than satire.  Whether or not an infringing use is considered fair is determined by the court balancing four factors set forth in the Copyright Act.  One of the four factors is the “amount and substantiality” taken.  This means that the court looks at how much of the original work the infringer used to create his/her own.  The larger the amount taken, the more this factor weighs in favor of the plaintiff/original author.
When it comes to parody and satire, generally a large amount (the “heart or the essence”) is borrowed and under the general rule, this factor would weigh in favor of the plaintiff.

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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