Thursday, January 1, 2009

Best Political Video of 2008: Is It Fair Use?

This Andrew Sullivan post announcing the annual winners of his various awards also includes a link to what is, by far, the best political video of 2008. Of course it unfairly equates Hillary Clinton with Adolf Hitler; trivializes Nazism's true victims; possibly infringes copyright; yada yada yada. It also brilliantly and hilariously captures those surreal three months last spring between the time Clinton effectively lost the nomination and when she finally admitted it. Sure, sober and insightful news stories told the tale, but not remotely as well as this:

Is it fair use? Strictly speaking, I lean slightly "no," though could be convinced otherwise. (UPDATE: I'm assuming that the makers of the video didn't have permission from the film's producers.) It's commercial (originally from the ad-supported Funny or Die); it uses a sizable chunk of "Downfall," a creative work; and it arguably harms the copyright owner's ability to license clips. It's transformative (at least as to the dialogue), but it's satirical (i.e., uses the work to poke fun at something else), and thus doesn't get as much fair use protection as parody (which pokes fun at the work itself). See Cambpell v. Acuff-Rose (esp. footnotes 14-15 and surrounding discussion). But put the academic argument about the law aside for a second. No copyright owner in its right mind should go after a use like this (and, in fairness, they seldom do). There are plenty of true infringers to target, and copyright owners would be ill-advised to fight their fair-use battles on the political/satirical battleground (or bunker).

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