U.S. Appeals Court Affirms Parody Was Clear Fair Use

Jun 8, 2012 2:00 PM PST

CHICAGO — In an important ruling involving parody productions, a federal appeals court affirmed yesterday that a "South Park" episode called “What What (In the Butt)” did not infringe on the YouTube video of the same name.

Yesterday's ruling is significant for various sectors of the U.S. film business including the adult industry, which have relied on parodies to add to the bottom line. The decision underscores the ability for judges to dismiss cases early on because of abusive copyright claims. 

In the case, plaintiff Brownmark Films sued Viacom and Comedy Central, alleging copyright infringement over the 2008 "South Park" episode, but a federal judge promptly dismissed the case, ruling it was a clear case of fair use and that early dismissal of the case was correct.

Brownmark later appealed to the 7th U.S. Circuit Court of Appeals, claiming that fair use cannot be decided on a motion to dismiss, no matter how obvious.  

Viacom fought back, taking its case to a federal appeals court, saying that dismissal in the early stages of litigation is imperative to protect free speech and discourage frivolous litigation.

The 7th Circuit agreed with Viacom, calling the lower court’s decision “well-reasoned and delightful.” 

"We hold that the district court could properly decide fair use on [an early motion]," the appeals court said. "Despite Brownmark’s assertions to the contrary, the only two pieces of evidence needed to decide the question of fair use in this case are the original version of 'What What (In the Butt)' and the episode at issue.

"When the two works in this case are viewed side-by-side, the 'South Park' episode is clearly a parody of the original 'What What (In the Butt)' video, providing commentary on the ridiculousness of the original video and nature of certain YouTube videos."

This case involves one "South Park" episode entitled “Canada On Strike,” which satirized the 2007-2008 Writers’ Guild of America strike, inexplicably popular viral videos and the difficulty of monetizing Internet fame. In the episode, the nation of Canada goes on strike, demanding a share of the “Internet money” they believe is being generated by viral videos and other online content.

The South Park Elementary schoolboys — Cartman, Stan, Kyle and Butters — decide to create a viral video in order to accrue enough “Internet money” to buy off the striking Canadians. The boys create a video, “What What (In The Butt),” in which Butters sings a paean to anal sex. The video is a huge hit, but the boys are only able to earn “theoretical dollars.”

This "South Park" parody includes the same title as the original Brownmark Films video, featuring an adult male singing and dancing in tight pants. The "South Park" version stars Butters, a naive nine-year old, in a variety of costumes — dressed as a teddy bear, astronaut and daisy.

The court pointed to the Copyright Act of 1976, which sets forth four, nonexclusive factors that a court must consider in determining whether a particular use of a copyrighted work is a fair use: (1) the purpose and character of the use; (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.

"We consider each factor in turn, ultimately agreeing with the district court’s analysis and findings," the appeals court said.

With the decision, the court noted that its ruling and others like it are important not only to protect speech, but also in fighting back against copyright trolls, who depend on the threat of legal costs to encourage people to settle cases even though they might have legitimate defenses.  

The court said that plaintiff Brownmark Films' litigation strategy in correspondence with defendants gave the appearance of a copyright troll.

"[I]nfringement suits are often baseless shakedowns," the court said. "Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits."

The Electronic Frontier Foundation backed Viacom with an amicus brief in the case at the 7th Circuit.

The case is Brownmark Films vs. Comedy Partners, No. 11-2620.  

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