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Whether the parody defence applies here or not seems to me in my non-expert opinion to be an iffy issue, especially as it may apply in some jurisdictions but no
by hugh3 17y ago
Whether the parody defence applies here or not seems to me in my non-expert opinion to be an iffy issue, especially as it may apply in some jurisdictions but not others. There's certainly a case to be made, but why should youtube foot the bill for making it?
Anyone who is really upset about this and is sure that the parody defence will work is free to host their own Hitler parody and try to get themselves sued by the producers. I might even kick in ten bucks to your legal budget.
Of course the other issue here is less to do with parody and more to do with the Germans' legendary touchiness on the subject of Hitler. I remember when that film first came out there was some controversy about whether it was excessively "humanising" Hitler (as if Hitler were something other than human).
- jacquesm 17y ago> There's certainly a case to be made, but why should youtube foot the bill for making it? Because they made good money of it?
- hugh3 17y agoI'm guessing that whatever money gets dragged in by the ad clicks on Downfall parodies it isn't nearly enough to pay for a major copyright case.
- jacquesm 17y agoBut it's not just the downfall parodies, it's all parodies they'd be making a stand for. Youtube should be willing to make a stand on this, clearly these have cultural value, and to lose them is a real pity.
- hugh3 17y agoNot really, it's a small subset of parodies. The parody defence is well enshrined in law in most justisdictions but it's a genuine legal question whether it applies in this case. IANAL but this parody is stretching the definition since: a) It uses a not-insignificant slice of the original film (an entire scene, four minutes long iirc) b) It changes nothing from the original except to add some subtitles. (Note that this means that someone who spoke German but not English would not be able to distinguish between this scene and an English-subtitled version of the original film) c) Possibly the kicker: the target of the parody is not the film being copied. People making these videos aren't aiming to make fun of Der Untergang (which many of them have probably never seen), they're aiming to make fun of Xbox Live, or Apple, or Star Trek, or whatever. Wikipedia on "Parody" says: "The Supreme Court of the United States stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works."" so you'd have to argue that the edits were intended as a commentary on Der Untergang, which seems iffy to me.
- jacquesm 17y agoI think it parodies Hitler, not the movie. Also, the movie was produced by a German company, so I think the Berne convention on copyright is what applies here, not the US supreme court, but I'm not quite sure, after all Youtube is an American company. The Berne convention does not mention 'fair use' or parody at all.
- tolmasky 17y agoRegarding point "b)", I think you made your own point against yourself already: for most people, the scene is 100% different since they don't understand German. If I were to make a parody where I changed the words, I don't think it would be a valid argument to say "but for deaf people the scene is exactly the same!". Similarly, keeping the music and doing drastic changes to the visual you could argue "but to blind people its exactly the same!".
- hugh3 17y agoFor most people the scene is the same since they don't understand German or English. In any case my point about German speakers was subsidiary to my actual point: it's quite a small change to the original.