The Strange Case of Ellen DeGeneres, George W. Bush, and a Very Bad Takedown

It’s legitimately amazing that famous people and companies keep doing this. They keep using the DMCA to take down criticism, which always makes them look even worse than they did when the criticism was allowed to be seen. Does no one in Hollywood know about the Streisand Effect?

Comedian and talk show host Ellen DeGeneres was photographed at a football game with former U.S. president George W. Bush. This sparked a debate about Bush’s legacy and whether being friendly to someone amounts to endorsing their actions. DeGeneres addressed the debate on her show, The Ellen Show.

Rafael Shimunov re-edited that portion of the show so that, instead of photos from the football game appearing behind DeGeneres, photos from Iraq War were shown instead. It’s a pretty clear case of re-editing a video in the interests of criticizing and commenting on the original. It’s also only 1:47 minutes long.

The edited video was published to Twitter, and the original posting the video now displays the classic “this video has been removed in response to a report from the copyright holder” message. The account that posted the video shared the takedown notice it received, which appears to identify an employee of the Ellen Show (i.e. not an automatic copyright bot) as the notice's sender.

Other people have reposted the video, which is sometimes being removed and sometimes not. It’s been suggested that this is the result of it being one social media manager’s job to file takedowns every time the video is spotted and not because the Ellen Show has recognized that DMCA takedowns are not supposed to be filed against fair use.

The original tweet identifies the video it’s posting as “transformative.” Now, it’s not that anyone checking videos for infringement should take the poster’s word for it. But this should have at least been a flag for the social media manager to take fair use into account while watching the video and before sending the takedown. Which, it turns out, courts have held the DMCA requires them to.

Holding copyright does not immunize you from criticism. But it’s hard to remember that when DMCA takedowns are so easy to file.

October 8, 2019