“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.
“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.”
“Of course, the real question is: why? Why has Constantin Films chosen to suddenly claim copyright on these clips after six years — especially when the clips generate interest from parties who are otherwise unlikely to even look at the film (the film, which was nominated for the Academy Award for Best Foreign Language Film, was independently produced and is entirely in German). Certainly plenty of wayward YouTubers and Internet-goers have been driven to discover the source of the clips that provide them with so much entertainment. So, yes, you wonder why Constantin Films is suddenly putting the kibosh on this obvious stream of free publicity.
“Even the director of ‘Downfall,’ Oliver Hirschbiegel, thinks the parodies are funny. He told New York Magazine in January 2010: ‘Someone sends me the links every time there’s a new one. I think I’ve seen about 145 of them! Of course, I have to put the sound down when I watch. Many times the lines are so funny, I laugh out loud, and I’m laughing about the scene that I staged myself! You couldn’t get a better compliment as a director.'”