Saturday, April 24, 2010

Taking down the Führer

The legal eagles at Constantin Film AG have been working to put the brakes on the use of video clips from one of its films, a movie in which the likeness of Adolf Hitler was put to higher and better use than anything its real-life counterpart ever accomplished.

In the process the lawyers at the Munich-based film company frustrated (at least for a while) the blogosphere’s use of the architect of Nazi Germany as a meme for our universal talent for outrage and impatience, and reopened the issue of “fair use” of content for purposes of legitimate free expression in the 21st century.

The word went out some days ago: if you went to YouTube and downloaded any one of several parodies that included the use of excerpts from the 2004 Oscar-nominated Constantin film “The Downfall,” a takedown was coming.

The film was an examination of the last days of the Third Reich, from the perspective of those in the bunker with Adolf Hitler and his inner circle as the Russian Army slowly encircled Berlin in April 1945. The Swiss actor Bruno Ganz convincingly portrayed the Führer, in all his fulminating glory, but the film did middling business in the United States, earning $5.5 million despite its nomination for a best foreign language Oscar in 2004.

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Since then, scenes of Hitler in paroxysms of fury in the bunker have been used by rogues in the blogosphere, substituting the film’s original subtitles with titles documenting Hitler’s displeasure with everything from the iPad’s shortcomings to the dismal performance of the New York Mets, from NFL quarterback Brett Favre’s meltdown last season to the delay of the release of the latest Harry Potter movie.

On Tuesday — April 20, Hitler’s birthday, curiously enough — YouTube began taking down the parodies en masse, following Constantin’s request. Martin Moszkowicz, Constaintin’s head of film and television, told CBS News that the company had been waging its own war over copyright infringement for a long time.

“When does parody stop? It is a very complicated issue," Moszkowicz said. "So we are taking a simple approach: Take them all down. We've been doing it for years now. The important thing is to protect our copyright. We are very proud of the film.”

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Much of the Hitler takedown issue centers on application of “fair use,” the deliberately ambiguous doctrine (as expressed in Title 107 of the United States Code) that permits limited use of copyrighted material without the rights holders’ permission. In the case of parodies, American appellate courts have been historically, but not absolutely, favorable to parodies like the Hitler meme as protected instances of fair use.

At least one Jewish organization, long opposed to trivializing the 20th century’s personification of evil, hailed Constantin’s move. Abraham Foxman, national director of the Anti-Defamation League, told CBS his group was “delighted” with the mass takedown.

“We find them offensive,” Foxman said. “We feel that they trivialize not only the Holocaust but World War II. Hitler is not a cartoon character.”

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True enough. But many disagree — starting with “The Downfall’s” own director. In an interview with New York magazine in January, Oliver Hirschbiegel said he frequently received the videos and actually enjoyed them. “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," he said.

“The point of the film was to kick these terrible people off the throne that made them demons, making them real and their actions into reality,” Hirschbiegel said. “I think it's only fair if now it's taken as part of our history and used for whatever purposes people like.”

And in perhaps the ultimate tribute to the Hitler meme, various mavericks with digital cameras and a wicked sense of humor have already begun repopulating YouTube with videos parodying the YouTube takedown, some of them borrowing again from “The Downfall” — this time with Hitler ranting and foaming about ... the YouTube takedown itself. Effectively creating a meme of a meme.

While it’s true that downplaying the brutal handiwork of the ne plus ultra of evil in the service of everyday parody is tricky emotional terrain to cross, never mind the legal terrain, Constantin, and YouTube in particular, are now hostage to the wide-open creative frontier of the Internet — the same frontier that made YouTube possible in the first place, and phenomenally successful ever since. While this war over intellectual property can be expected to rage for some time to come, Hirschbiegel and the blogosphere understand all too well: You can’t keep a good meme down.

Image credits: Takedown notice: YouTube. Still from 'Downfall': © 2004 Constantin Film AG. Still from 'Downfall' parody: Andy Rowell via YouTube.

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