Its creator probably didn’t realize what he or she was doing, but this Hitler video has a better fair use claim than any other I’ve seen. Even on the more sophisticated pop culture sites I read, people just won’t accept that “funny” != “parody.”
Oddly enough, I think the creators of this particular Hitler video have a stronger fair-use claim than the others. The others are not making a parody of the film. They are using the film clip to parodize (is that a word?) some other person or event. One of the rationales behind parody fair use is that we don’t want copyright to be used by its owner to prevent criticism of the work itself. That rationale is not particularly furthered by the other videos, but is by this one.
Suppose that somebody, say Jon Stewart, had originally created the Hitler clip from scratch, for the purpose of making it a weekly feature on a comedy show, using the same subtitling method as is done in the actual Hitler videos. It would not be fair use, then, for other comedians (professional or amateur) to take Jon Stewart’s video and make their own versions, making fun of whatever targets they choose. That would be copyright infringement of Stewart’s creation. The mere fact that you are using copyrighted material to make fun of something does not make it a “parody” under copyright law.
PatHMV is objectively correct – This particular Hitler parody has a strong claim for fair use, but most of the others don’t.
However, that goes to the heart of the problem – fair use law is mostly a hollow right and needs to be greatly expanded in terms of what courts will allow. So while PatHMV is absolutely right in his legal analysis, the fact that the other Hitler videos can legitimately be taken down so easily is still a moral outrage.
With awful case law such as DR SEUSS v PENGUIN BOOKS still valid, it is hard to argue that these other videos are somehow protected. That doesn’t make it right. Instead, it only suggests that the Seus v. Penguin Books case needs to overturned, and that the fair use/parody defense needs to be rethought and vastly expanded from the ground up.
The Wind Done Gone book commented extensively and directly on Gone With The Wind (unlike most of the Hitler parody videos which appropriated the film clip to comment on other items outside of itself). And as your own link points out, the Wind Done Gone publishers still ended up paying money to the Mitchel estate.
Therefore, it seems to me that your example only validates the analysis I put forth in support of PatHMV’s claims.
Suppose that somebody, say Jon Stewart, had originally created the Hitler clip from scratch, for the purpose of making it a weekly feature on a comedy show, using the same subtitling method as is done in the actual Hitler videos. It would not be fair use, then, for other comedians (professional or amateur) to take Jon Stewart’s video and make their own versions, making fun of whatever targets they choose.
But that’s not the same–the original clip is not comedy. The ‘Downfall’ videos are using Hitler to make fun of other things, that’s true, but they are ALSO, at the same time, making fun of Hitler and making fun of the movie ‘Downfall’ for taking Hitler’s last days so seriously. This, not copyright infringement, is what Jewish organizations had been complaining about:
Abraham Foxman, national director of the Anti-Defamation League, said the league was “delighted.”
“We find them offensive,” said Foxman of the videos. “We feel that they trivialize not only the Holocaust but World War II. Hitler is not a cartoon character.”
Their complaint demonstrates that it is clearly not just the Dallas Cowboys or XBox Live or Hillary Clinton that are being parodied, but Hitler and Downfall’s treatment of him.
I wouldn’t feel comfortable declaring that any of the videos ARE parodies and therefore DEFINITELY constitute a fair use. It’s certainly worth pointing out that this conclusion might be true, but I think it’s misleading/potentially inaccurate to come out describing things in such a definitive way. Maybe I care more about this because I’m a lawyer, but . . . I would expect that journalists care about being accurate/not misleading.
Personally, this one is funnier than the one Prof. Volokh posted. That one did have a great point about seeing the movie. I know that I’ve added it to my Netflix cue because of these videos. I don’t think I would have heard of the movie otherwise.
Franklin’s comment at 9:28am April 22, 2010 is spot on.
One of the horrors of modern copyright law is the fact that few, if any, uses of copyrighted material can definitively be declared “fair use” until after the particular instance has been adjudicated in court – a process which takes several months, if not years, at the potential cost of thousands of dollars from the user of the material.
With the general public now able to access and manipulate works in our digital world, this regrettable aspect of our legal system is in dire need of reform.
Whenever a lawyer or somebody else tells you that a particular instance of copying is “obviously” or “obviously not” fair use/parody, etc., they usually aren’t giving you an objective analysis of the law. Instead, they are merely telling you what their own ideologically tainted policy preferences are in order to serve their own interests (economic interests, creative interests, etc.). They often try to disguise their opinions by using the rubric of “legal analysis” in order to try attach some legal “authority” to what is simply their personal desires – but such authority is a complete chimera.
Any lawyer who tells you with absolute certainty that a particular use of a creative work is or is not “fair use” is an complete fraud with no consideration of how the law actually operates in this area.
I would also expect these videos to come under “fair use” by the fact that the clip is a very small portion of the original work. It would be one thing if they were showing the entire movie, or a very significant portion…but this clip is about four minutes, from a movie that I’d guess would be two hours (maybe longer). Thus, it is less than 4% of the movie.
If this clip were embedded in a news article, or presented in a history class, to make a point, there would be no question that it’s fair use. I don’t see why it should be any different to show a clip, and then to add your own subtitles to it!
Bski says:
Never thought I’d agree with Hitler.
April 21, 2010, 5:25 pmSteve says:
Hard to argue with Hitler.
April 21, 2010, 5:26 pmMauricio says:
hahahaha
I never send mass emails but this post I will pass along.
April 21, 2010, 5:39 pmrb1971 says:
Yup, Youtube Hitler knows what he’s talking about. When Hitler’s right on the Internet, does that violate Godwin’s law?
April 21, 2010, 5:46 pmMike McDougal says:
I, too, thought we could have nice things on the internet.
April 21, 2010, 5:52 pmBarrySanders20 says:
“They’re doing nothing while these !@#$% Nazis are destroying the world!”
Classic.
April 21, 2010, 6:03 pmNobody says:
Its creator probably didn’t realize what he or she was doing, but this Hitler video has a better fair use claim than any other I’ve seen. Even on the more sophisticated pop culture sites I read, people just won’t accept that “funny” != “parody.”
April 21, 2010, 6:10 pmA Non-E Mous says:
Oh wow. FTW.
April 21, 2010, 6:38 pmPatHMV says:
“Don’t worry, he’ll realize the irony soon.” Best line in any Hitler parody video ever!
April 21, 2010, 7:00 pmAllan says:
This is the best one I have seen.
The irony line is genius.
April 21, 2010, 7:05 pmPatHMV says:
Oddly enough, I think the creators of this particular Hitler video have a stronger fair-use claim than the others. The others are not making a parody of the film. They are using the film clip to parodize (is that a word?) some other person or event. One of the rationales behind parody fair use is that we don’t want copyright to be used by its owner to prevent criticism of the work itself. That rationale is not particularly furthered by the other videos, but is by this one.
Suppose that somebody, say Jon Stewart, had originally created the Hitler clip from scratch, for the purpose of making it a weekly feature on a comedy show, using the same subtitling method as is done in the actual Hitler videos. It would not be fair use, then, for other comedians (professional or amateur) to take Jon Stewart’s video and make their own versions, making fun of whatever targets they choose. That would be copyright infringement of Stewart’s creation. The mere fact that you are using copyrighted material to make fun of something does not make it a “parody” under copyright law.
April 21, 2010, 7:07 pmEMB says:
Well, if you want to disagree with Hitler on this issue, you should take a look at this video instead.
April 21, 2010, 7:28 pmBenjamin Davis says:
Takes you to a very wierd space on the internet.
April 21, 2010, 8:12 pmBest,
Ben
Dave says:
Don’t worry, they’ll realize the irony soon
April 21, 2010, 8:50 pmJustin Levine says:
PatHMV is objectively correct – This particular Hitler parody has a strong claim for fair use, but most of the others don’t.
However, that goes to the heart of the problem – fair use law is mostly a hollow right and needs to be greatly expanded in terms of what courts will allow. So while PatHMV is absolutely right in his legal analysis, the fact that the other Hitler videos can legitimately be taken down so easily is still a moral outrage.
With awful case law such as DR SEUSS v PENGUIN BOOKS still valid, it is hard to argue that these other videos are somehow protected. That doesn’t make it right. Instead, it only suggests that the Seus v. Penguin Books case needs to overturned, and that the fair use/parody defense needs to be rethought and vastly expanded from the ground up.
Read the DR SEUSS v PENGUIN BOOKS case here:
http://scholar.google.com/scholar_case?case=15758460119711775481&hl=en&as_sdt=2&as_vis=1&oi=scholarr
More here:
http://blogs.law.harvard.edu/yuminemma/2009/12/16/satire-or-parody-dr-seuss-enterprises-v-penguin-books-usa/
April 21, 2010, 9:11 pmJoseph Slater says:
Great link, and I’ll “me too” on the “don’t worry, he’ll realize the irony soon” line.
April 21, 2010, 10:07 pmAll Good Memes Must Come to an End | Snowflakes in Hell says:
[...] Hat tip to Eugene Volokh. [...]
April 21, 2010, 10:17 pmFedya says:
Justin:
As opposed to Suntrust v. Houghton Mifflin, the case about the parody The Wind Done Gone, which was in fact rule a parody by the Eleventh Circuit.
April 21, 2010, 10:19 pmDave says:
Professor Volokh,
What are your views concerning the remix culture and copyrights? Should copyright laws be reformed to allow more leniency to remixing?
April 21, 2010, 10:26 pmJustin Levine says:
Fedya –
The Wind Done Gone book commented extensively and directly on Gone With The Wind (unlike most of the Hitler parody videos which appropriated the film clip to comment on other items outside of itself). And as your own link points out, the Wind Done Gone publishers still ended up paying money to the Mitchel estate.
Therefore, it seems to me that your example only validates the analysis I put forth in support of PatHMV’s claims.
April 21, 2010, 10:41 pmMike W. says:
See also: http://www.youtube.com/watch?v=PzUoWkbNLe8
April 22, 2010, 2:36 amSlocum says:
Suppose that somebody, say Jon Stewart, had originally created the Hitler clip from scratch, for the purpose of making it a weekly feature on a comedy show, using the same subtitling method as is done in the actual Hitler videos. It would not be fair use, then, for other comedians (professional or amateur) to take Jon Stewart’s video and make their own versions, making fun of whatever targets they choose.
But that’s not the same–the original clip is not comedy. The ‘Downfall’ videos are using Hitler to make fun of other things, that’s true, but they are ALSO, at the same time, making fun of Hitler and making fun of the movie ‘Downfall’ for taking Hitler’s last days so seriously. This, not copyright infringement, is what Jewish organizations had been complaining about:
Their complaint demonstrates that it is clearly not just the Dallas Cowboys or XBox Live or Hillary Clinton that are being parodied, but Hitler and Downfall’s treatment of him.
April 22, 2010, 7:34 amFranklin says:
One thing that I find interesting– the MSM, when discussing fair use, tends to not get the subtleties of it.
E.g. http://www.msnbc.msn.com/id/36693704/ns/technology_and_science-tech_and_gadgets/ : “YouTube has recently begun removing videos that feature content from Constantin Films’ 2004 film, “Der Untergang” (“Downfall”), despite the fact that many of these videos are parodies and thus constitute fair use of the material.”
I wouldn’t feel comfortable declaring that any of the videos ARE parodies and therefore DEFINITELY constitute a fair use. It’s certainly worth pointing out that this conclusion might be true, but I think it’s misleading/potentially inaccurate to come out describing things in such a definitive way. Maybe I care more about this because I’m a lawyer, but . . . I would expect that journalists care about being accurate/not misleading.
April 22, 2010, 9:28 amProf. S. says:
Personally, this one is funnier than the one Prof. Volokh posted. That one did have a great point about seeing the movie. I know that I’ve added it to my Netflix cue because of these videos. I don’t think I would have heard of the movie otherwise.
April 22, 2010, 9:41 amJake says:
Um… Where would you get that idea?
April 22, 2010, 10:08 amHitler Accuses Google of Appeasement says:
[...] Check out the Volokh post and the clip to which it links. The post is titled “Anything You Can Do I Can Do Meta.” [...]
April 22, 2010, 3:39 pmJustin Levine says:
Franklin’s comment at 9:28am April 22, 2010 is spot on.
One of the horrors of modern copyright law is the fact that few, if any, uses of copyrighted material can definitively be declared “fair use” until after the particular instance has been adjudicated in court – a process which takes several months, if not years, at the potential cost of thousands of dollars from the user of the material.
With the general public now able to access and manipulate works in our digital world, this regrettable aspect of our legal system is in dire need of reform.
Whenever a lawyer or somebody else tells you that a particular instance of copying is “obviously” or “obviously not” fair use/parody, etc., they usually aren’t giving you an objective analysis of the law. Instead, they are merely telling you what their own ideologically tainted policy preferences are in order to serve their own interests (economic interests, creative interests, etc.). They often try to disguise their opinions by using the rubric of “legal analysis” in order to try attach some legal “authority” to what is simply their personal desires – but such authority is a complete chimera.
Any lawyer who tells you with absolute certainty that a particular use of a creative work is or is not “fair use” is an complete fraud with no consideration of how the law actually operates in this area.
April 22, 2010, 6:30 pmAlpheus says:
I would also expect these videos to come under “fair use” by the fact that the clip is a very small portion of the original work. It would be one thing if they were showing the entire movie, or a very significant portion…but this clip is about four minutes, from a movie that I’d guess would be two hours (maybe longer). Thus, it is less than 4% of the movie.
If this clip were embedded in a news article, or presented in a history class, to make a point, there would be no question that it’s fair use. I don’t see why it should be any different to show a clip, and then to add your own subtitles to it!
April 23, 2010, 10:01 am