But now Tim Cavanaugh of Reason reports in a post titled "First they came for Hitler..." that Constantin Films, the German producer of the film, Downfall, are forcing YouTube to start taking down the parodies. And Youtube is complying. As Cavanaugh reports, the law is on the side of the satirists.
The legal merits of Constantin's argument are clear: They do not exist. Downfall parodies take less than four minutes of a 156-minute film, and use them in a way that is unquestionably transformative. Maybe Moturk49 was somehow making a ton of money from his or her Xbox-related parody, but it seems unlikely. In any event, the Supreme Court's 1994 decision in the "Hairy Woman" lawsuit established that the commercial nature of a parody does not render it presumptively unfair, and that a sufficient parodic purpose offers protection against the charge of copying.What a shame if this rich, very American form of parodies should dry up simply because YouTube gets frightened by a German producer.
Not that that will matter. The issue is YouTube's kneejerk takedowns. The site is free to do what it likes; nobody will bother going to court over something so ephemeral as a Hitler joke; and though YouTube is obviously the best and most popular forum for any video, it's not like there's some inalienable right to run your content there. Still, the use of immediate takedowns is a blunt instrument that YouTube and its owner Google will, I hope, learn to refine in the future. Meanwhile, brand-new Downfall parodies, including the inevitable Hitler-issues-DMCA-takedowns version, are available elsewhere.
Of course, Constantin films should be overjoyed at the success of the Downfall meme. I don't know that it would even be possible to total up all the views on all the parodies out there, but it is conceivable that thanks to these parodies more Americans are aware of Downfall than of any non-English-language film ever made. And the company really fell into the schmaltz barrel by virtue of the fact that everybody refers to them as "Downfall parodies," so if you're intrigued enough to check out the (well worth seeing) original film, you know what to look for.
Just don't look for it on YouTube.