Reclaiming Copyright From the Outside In: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody

Abstract

Continuing advances in consumer information technology have made video editing, once difficult, into a relatively simple matter. The average consumer can easily create and edit videos, and post them online. Inevitably many of these posted videos incorporate existing copyrighted content, raising questions of infringement, derivative versus transformative use, fair use, and parody.

This article looks at several such works, with its main focus on one category of examples: the Downfall Hitler meme. Downfall Hitler videos take as their starting point a particular sequence – Hitler’s breakdown rant – from the 2004 German film Der Untergang [Downfall in the US]. The user then adds English subtitles, creating a video that is, or is intended to be, humorous, with the humor largely derived from the incongruous and anachronistic content of the subtitles as well as from the inherently transgressive use of the original content for comic purposes.

This article examines whether the Downfall videos, and other similar works, are more transformative than derivative under 17 U.S.C. section 107, as well as whether the use of the copyrighted material, even if otherwise derivative, is fair use under 17 U.S.C. section 107. The article also considers whether the videos are parody within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

Keywords: Campbell v. Acuff-Rose, copyright, derivative work, Downfall, fair use, Hitler, infringement, parody, subtitles, transformative use, video, YouTube

JEL Classification: K39