Do You Think Nazis Are Entitled to Copyright Protection?

You may find this hard to believe but the German Government, or entities within it, are still trying to selectively enforce copyrights connected to the National Socialist German Workers Party (the Nazis).

A documentary I made back in 2006, You don’t know Hitler, was recently removed from my YouTube channel after BR Enter Music, in the name of the German National Library (DNB), told YouTube I had used the Nazi Anthem (aka the Horst Wessel Song) without permission. The DNB claims that they own the “sound recording,” rights to the song and this should somehow give them authority over my work.

I was shocked that anyone would claim exclusive ownership and control over any piece of Nazi propaganda. The Nazis were convicted of Crimes Against Humanity and their propaganda is a part of that criminal record; it is not a commodity to managed by anyone. As the the Israeli documentarian and author, Alan Rosenthal, told me years ago, while visiting my graduate school in Texas, he never had and never would pay to use any Nazi material or seek any permissions, in any way, because nothing could be more in the Public Domain than Nazi propaganda. This isn’t just a moral position, it is one backed up by a long legal tradition.

During the Second World War, the US Government used legendary Hollywood Director Frank Capra to produce the Why We Fight series; explaining to Americans what the war was about and why they had to win it. Capra liberally borrowed from Nazi propaganda to show the danger the world faced from Hitler’s regime. At the same time, the UK Government expressly revoked any recognition of Nazi copyrights. After the war, the first major, nongovernmental, documentary about the Holocaust was produced in France, Night and Fog (1955). It too freely used Nazi propaganda footage without permission or payment, as many productions since then have.

Even if you are a copyright zealot who feels that copyright protection should never be denied to anyone, not even to international war criminals, there is another issue at play here: fair use. Fair use is a legal concept that exists in various forums through the world. It allows journalists, documentarians, educators, comedians, and others to use copyrighted material for certain express purposes (e.g. you can borrow the music to a current pop song and put in your own comical lyrics to make a joke or parody; you can also play a clip of a song you are reviewing to help you explain to the audience why you think the work is good or bad). My film – which shows how Hitler wanted to be presenting on film and how his regime depicted Jews – is filled with historical and political arguments that clearly fall under the umbrella of fair use, as it is understood in US Courts (I go into more detail on this at my own blog).

YouTube should not have been so quick to accept a claim against me. They should have stood up against the protection of Nazi copyrights. They should have stood up for fair use. And they should revise their procedure for refuting such claims, so that filmmakers, journalists, critics, etc. will have an easier time defending our rights. Instead, they removed my film and warned me that I could have my entire account removed if I continued to violate copyrights. Only then did they allow me to file a counter-notification stating why I think BR Enter and the DNB are wrong. Even here, however, YouTube severely limited the number of characters I was allowed to use, so I could not give any extended arguments about how my film meets the criteria commonly used to define fair use or why we should not consider Nazi propaganda to be copyrighted in the first place.

Now I have to wait 10 business days after filing my counter-notification for BR Enter and the DNB to decide what they will do. They can file legal action against me in a US Court or they can drop the matter and allow my film to return to my YouTube channel.

I am sharing this story with anyone who will listen because I think it is important on several fronts: 1) We need to keep telling the story of what happened in Nazi Germany and the Holocaust. We cannot simply assume that people know it and move on. In order to tell this story effectively, we often need to use the Nazi’s own material against them. This should be done freely and without fear of legal troubles. 2) The principle of fair use is under attack generally by governments and corporations who want to claim exclusive control over all manner of speech. 3) YouTube, and other social media platforms, which allow private citizens to speak with a mass media voice, should have a responsibility to stand up for the rights of their users and not simply take the easy way out, pretending that they have no other alternative.

I hope you agree with me and you will make an effort to share this story with others. Don’t be silent when it comes to our rights! I also hope that you will check out, You don’t know Hitler, which is still available on my vimeo and pivotshare channels.

UPDATE: After submitting this piece for publication I learned that the German National Library (DNB) now claims that BR Enter Music does not speak to for the DNB. I have contacted YouTube and hopefully they will stop BR Enter Music from abusing the rights of others in the future but that still does not get at the underlying issues: 1) Why are Nazi copyright claims considered valid, and 2) Why doesn’t YouTube have a more intelligent system for dealing with these questions?