James Lambert, creator of the documentary You Don’t Know Hitler, wrote a blog post explaining that the documentary had been taken down from YouTube over a copyright claim. The copyright claim was sent by the record label BR Enter Music, which was seemingly acting on behalf of Deutsche Nationalbibliothek(DNB), also known as The German National Library. However, DNB contacted TorrentFreak, saying BR Enter Music does not represent them. Even though DNB has distanced themselves from the claim, the video remains unavailable on YouTube at the time of this writing.
According to the claim, the video was taken down because it contained a portion of the song “Horst Wessel Lied,” which was used as an anthem for the Nazi party from 1930 to 1945. Specifically, it claimed that DNB held the sound recording rights to a specific performance of the song. Lambert filed a counter-notification, but criticizes the process YouTube has set up. He is particularity critical of the fact that there is a limited number of characters allowed to make his argument that the video is not infringing. In the counter-notification he wrote:
In my expert opinion, as a documentarian and a professor of film, with an MFA in my field, I am confident that my documentary should not have been removed. I have composed a lengthy argument 1) Explain why Nazi Propaganda is in the Public Domain, and 2) Why, even if it was not in the Public Domain, everything I have done in this film meets the four criteria commonly used to define Fair Use in U.S. Courts. Unfortunately, YouTube’s ridiculous system limits the number of characters I can type here.
In the blog post, he has a longer explanation than could be provided in the counter-notification system. He argues that the song in question is in the public domain. He argues on moral grounds, that the Nazis were so evil its unthinkable that they retained their copyrights after being defeated by the Allies. He mentions other documentaries which used Nazi material without permission. He also cites a Hollywood filmmaker Frank Capra who made use of clips from the German propaganda film Triumph of the Will in his own series of propaganda films called Why We Fight, and the U.S. government seemingly did not consider that to be a violation of copyright law. The song used in Lambert’s documentary was taken from the same German film.
However, even if the sound clip is somehow still protected by copyright, Lambert has a fair use defense to fall back on. He argues that that film is a documentary, meant to educate people about the Nazis. It is also transformative work, which arranges clips alongside narration to make important arguments. The video is not monetized and Lambert makes no profit from the documentary. He also only uses a short clip rather than the entire song. For these reasons, he believes that this is a clear example of fair use.
For now, the documentary is still available on Vimeo.
Should copyrights on Nazi propaganda be enforced today? Do you think this is a copyright troll? Leave your comments below.