User Generate Parody Videos and Copyright Owners’ Duty Under DMCA

By James P.

    With the increasing popularity of user-generated content on the Internet and the ease with which users can manipulate media with readily accessible technology, it is no surprise that copyright owners are aggressively fightin to keep unauthorized content off websites like YouTube. At odds with the Copyright Owners’ interest in controlling the use of their content are the rights of individuals to express their own creativity while engaging in a “fair use” of another’s work, often through the creation of parody. A particularly dramatic scene from the 2004 film “Downfall” is a magnet for such parody creators, who superimpose captions over the film, “chang[ing] Hitler's words …  into satirical commentaries on everything from annoying World Cup vuvuzela horns to the collapse of real estate values.” Evangelista, Benny, Parody, Copyright law clash in online clips, San Francisco Chronicle, July 22, 2010 (available online at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/22/BUQV1EHV9G.DTL). In an effort to protect its copyright, Downfall’s producer began utilizing YouTube’s online mechanism for identifying copyrighted works.

    Even though the producer’s and studio’s main argument was that the entire film “Downfall” can be “viewed online in 10-minute increments without compensation for the studio, producers or actors.”  However, the studio’s search for violations “also netted the parody videos,” a significant number of which have been removed pursuant to YouTube’s compliance with the Digital Millennium Copyright Act. The question remains, in its zealous attempt to protect copyrighted work from infringement, what steps must a copyright owner take to ensure that it does not target fair use of a copyrighted work and trigger erroneous takedowns? 

Fair Use Under US Copyright Law

    The fair use doctrine is found in Section 107 of the Copyright Act, 17 U.S.C. Section 107.  Under that section, in order to determine whether a work qualifies for the fair use defense, courts must look at (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. This statute doctrine codifies the federal common-law test articulated in Folsom v. Marsh (1841). As Justice Storey articulated, “[a] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism.” Folsom v. Marsh, 9 F.Cas. 342 (1841). To test the reviewers true intentions, Justice Storey articulates a balancing test that “look[s] to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. I.d. Section 107 applies not only to criticism to all uses of copyright that meet the four-factor balancing test.

Fair Use and the DMCA?

    An unanswered question in Fair Use Doctrine is whether a Copyright owner must undertake an analysis of whether an allegedly infringing work qualifies for the statutory fair use defense before demanding a takedown under the Digital Millennium Copyright Act. The DMCA (17 USCA 1512(c)) creates a safe harbor from copyright infringement liability for an ISP who timely complies with a copyright owner’s notice to take down a work. The notice must be accompanied by an affidavit stating that the owner has a good faith believe that the work in question is infringing. The ISP then must take down the allegedly infringing work.

    Recently, however, the Northern District of CA determined that a copywriter owner must make “a good faith consideration of whether a particular use is fair use” before issuing a takedown notice, reasoning that “[r]equiring owners to consider fair use will help “ensure[ ] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.” Lenz v. Universal Music Corp., 572 F.Supp.2d 1150 (N.D.Cal.,2008). Lenz involved a mother who posted a short clip of her toddler dancing to a Prince song on YouTube, triggering a DMCA notice to YouTube from Universal. The case is currently on appeal to the 9th Circuit Court of appeals. Should the 9th Circuit uphold the District Court’s ruling, Copyright owners must consider whether an allegedly infringing use is indeed a “fair use” before filing a takedown notice in the 9th Circuit.

Do the “Downfall” Parody Videos meet the Statutory Fair Use Test?

    Any inquiry into whether a particular use meets the statutory “Fair Use” test under Section 107 is fact-intensive. For example, the question is not whether the “Downfall” Parody videos as a complete set meet the “Fair Use” requirements. Indeed, there will be cases in which some videos do and some do not. Given the competing interests between the copyright owner and the parody creators, it seems wholly unfair to me that the producer of “Downfall” can systematically scan YouTube for any uses of their film and utilize the DMCA notice and takedown provisions to block all uses, without an inquiry into whether the particular use qualifies as “fair use.”