2019’s sure been a year. For South Africa, that means extreme highs and depressing lows, but one things for sure, the country didn’t stop…
Is unintentional self parody an art form? Constantin Films, production company of an otherwise obscure movie entitled the ‘Der Untergang’ (‘Downfall’), which spawned an internet meme, has certainly taken self parody to new heights (or is that depths?). The clip from the film which shows Hitler, exasperated by the inability of his generals to stem the advance of the Allied Forces throwing a spectacular tantrum, has been remixed so that subtitles have Hitler raving about anything from the difficulties of migrating from XP to Windows Vista, to having trouble getting tickets to Billy Elliot the musical.
The clip isn’t bad film-making, but the subsequent behaviour by Constantin Films is so flat footed it had this very website asking “could this be the dumbest company in the world?” The production company is inviting comparison between its behaviour and Hitler’s tantrum; between the failing “content industries” and the last days of the 3rd Reich.
Constantin Films has recently taken to using the notice and takedown provisions of the DMCA to demand the removal of the remixes from YouTube. Many of the remixes are arguably parodies of the original clip which means that their use of the clip is protected by fair use in the United States, where YouTube is based. In response to the take down notices Brad Templeton produced his own remix using the clip to parody Constantin Films’ aggressive take down campaign.
Tempelton was self consciously engaging in parodiac fair use: “my video is about as good an example of a parody fair use as you’re going to see. It uses the clip to criticise the very producers of the clip and the takedown process.”
In the clip Hitler raves against fair use, Linux and the EFF and demands that anything be done to stop copying of the clip, DRM, even using alternative means to remove the clip off You Tube. The parody works well on more than one level, Hitler’s hysterical outburst repeats the increasingly bellicose language of Hollywood and the record industry as new distribution channels dis-intermediate their businesses.
In an attempt to out-parody this parody of its behaviour Constantin Film has attempted to remove the parody from YouTube. Constantin Films used a system called “Content ID” which circumvents the legal provisions of the DMCA. YouTube effectively allows a coterie of copyright holders, including Constantin Films, to use a system called “ContentID” to decide how much fair use they are willing to permit. ContentID suggests an astonishing failure to grasp copyright law by YouTube, the essence of fair use is that it refers to uses which do not require permission.
Usually when someone sends a DMCA takedown notice to a service provider then the person who uploaded the contested creation is able to respond in a number of ways, disputing ownership of the copyright or explaining why the use is fair use. Templeton’s claim of fair use is more than mere assertion, Templeton is a member of the EFF Board and so not only had to contend with the DMCA for the last twelve years but has advice from an enviable array of legal talent.
While parody is fair use in the Unites States, what is the situation in South Africa? South African law provides for a type of notice and take down in Chapter XI of the Electronic Communications and Transactions Act 2002. The Act does not provide for a counter notice as the DMCA does, instead it states that anyone who misrepresents the facts in a notice is liable for damages for wrongful take-down.
This means that if someone misrepresents in a takedown notice that use of copyright material is infringing then that someone will be liable for damages. Just because someone has made a copy that does not mean it is infringing, it may be permitted by law. Is copying for the purposes of parody permitted in South Africa?
The Copyright Act, passed in 1978 by a government comfortable with censorship, and uncomfortable with parody and other forms of free speech does not explicitly refer to parody. It does contain exceptions which can be read to permit parody. The Bill of Rights is the highest law and guarantees freedom of expression. The result is that the Copyright must be read to maximise freedom of expression, or if it can’t be read in that way, it must be struck down as unconstitutional.
South African case law doesn’t record any copies dealing with parody, but the Constitutional Court ruling in the Laugh It Off case which dealt with parody using a trademark ruled that all categories of expression, except hate speech, have constitutional protection. Therefore restrictions on speech including parody must be constitutionally authorised. Copyright law must be interepreted to permit freedom of expression, including parody.
In the United States Constantin Films faces the potential of a damages claim for infringing Templeton’s freedom of speech. Trying to stifle freedom of speech may turn out not to just be the worst possible marketing move imaginable but could also turn out to be a very poor legal move.
But on the other hand Constantin Films has earned itself a place in history for its self parody.