Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, September 30, 2011

"South Park" Creators Prevail In Fair Use Defense Of "What What In the Butt" Parody

A federal district court has dismissed a plaintiff's claim that the parody of a music video in an episode of use of a song in an episode of the popular show "South Park" constitutes infringement. Brownmark Films had sued Comedy Partners over its use of the music video "What What In the Butt" in the episode "Canada on Strike," and Comedy Partners had defended by arguing that the parody was fair use.

Said the court,

The fair use doctrine allows for a "limited privilege in those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner's consent." ...The rationale behind the doctrine is that unauthorized uses of a copyright are permissible when they "advance the underlying constitutional purpose of copyright law: to promote broad public availability of literature, music, and other forms of creative arts." Bruce P. Keller and Jeffrey P. Cunard, Copyright law: a practitioner's guide § 8.3 (2010). Specifically, 17 U.S.C. § 107, which codifies common law fair use principles, provides that the "fair use of a copyrighted work" for such purposes as "criticism" and "comment" "is not an infringement of a copyright." Moreover, the statute provides four guideposts by which to determine whether a particular use is "fair": (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. Id. However, as the Seventh Circuit has cautioned, "the four factors that Congress listed when it wrote a fair use defense . . . into the Copyright Act . . . are not exhaustive and do not constitute an algorithm that enables decisions to be ground out mechanically." ...Ultimately, the "fair use copier must copy no more than is reasonably necessary . . . to enable him to pursue an aim that the law recognizes as proper," such as "the aim of criticizing the copyrighted work effectively."... Moreover, application of the fair use doctrine requires a case-by-case analysis. ...With this framework for evaluating the fair use issue in mind, the court turns to the two works in question.

Here, applying the statutory factors from Section 107 of the Copyright Act and the principles behind the fair use doctrine, the court readily concludes that the defendants use of the music video in the South Park episode "Canada on Strike" was "fair." One only needs to take a fleeting glance at the South Park episode to gather the "purpose and character" of the use of the WWITB video in the episode in question. The defendants used parts of the WWITB video to lampoon the recent craze in our society of watching video clips on the internet that are — to be kind — of rather low artistic sophistication and quality. The South Park episode "transforms" the original piece by doing the seemingly impossible — making the WWITB video even more absurd by replacing the African American male singer with a naive and innocent nine-year old boy dressed in adorable outfits. The episode then showcases the inanity of the "viral video" craze, by having the South Park fourth graders' version of the WWITB video "go viral," seemingly the natural consequence of merely posting a video on the internet. More broadly, the South Park episode, with its use of the WWITB video, becomes a means to comment on the ultimate value of viral YouTube clips, as the main characters discover that while society is willing to watch absurd video clips on the internet, our society simultaneous assigns little monetary value to such works. The South Park "take" on the WWITB video is truly transformative, in that it takes the original work and uses parts of the video to not only poke fun at the original, but also to comment on a bizarre social trend, solidifying the work as a classic parody. ... Such use of a copyrighted work, which uses the work and transforms it for another purpose, lends this court to conclude that the defendants' use is fair. ...

Beyond the "purpose and nature of the work" statutory factor, the court also looks to the remaining issues raised in Section 107 of the Copyright Act. The "nature" of the copyrighted work factor is not particularly helpful to the court, however: while fair use is more difficult to establish when a core work is copied as opposed to when an infringer takes material that is only marginally within copyright protection, the "nature" of the copyright in question does not help this court assess whether South Park's parody is a fair use, because "parodies almost invariably copy publicly known, expressive works." ... Additionally, the court notes that the use of the copyrighted work in the South Park episode was relatively insubstantial. The defendants' work did not mirror the original WWITB video — indeed, the derivative work was a cartoon of a nine year old boy repeating just enough lines WWITB to conjure up the original work. Notably, the WWITB snippet in the South Park episode was less than a third of the length of the original work. The use of the imagery and words of the original work was all but the minimum needed by the defendants to accomplish their goal of commenting on a social phenomenon. ...Finally, there is little risk that derivative work in question would somehow usurp the market demand for the original: the South Park episode lampoons viral video crazes, while the WWITB video is the epitome of a clip that fuels such crazes. ...Looking at the Section 107 factors together, keeping in mind the purposes of the fair use doctrine, the court can easily conclude that South Park's parody of the WWITB video falls squarely within the fair use protections afforded by the Copyright Act. If the use by the defendants of the copyrighted work is somehow "unfair," it remains at the wholly speculative level, leaving the court with no choice but to grant the defendants' motion to dismiss.

Finally, the court concludes that the dismissal ought be with prejudice. Twice the plaintiff has filed a complaint in this court based on the use of the copyrighted work in an episode of South Park. (Docket #1, #6). Moreover, under recent changes to Fed. R. Civ. P. 15(a), the plaintiff had an additional opportunity to file a pleading to cure the errors raised by the motion to dismiss — in this case, the plaintiff could have filed a complaint that raised infringement claims outside of the context of the use of the copyrighted work in the production and dissemination of the South Park episode "Canada on Strike." Despite these opportunities to resolve rather glaring problems with the substance of the underlying dispute, the plaintiff has looked elsewhere and instead filed briefs that wholly ignored the central issue of this litigation, fair use. Such behavior is indicative of the efficacy of this litigation, which rightfully ends now.


The case is Brownmark Films v. Comedy Partners, 2011 U.S. Dist. LEXIS 72684; Copy. L. Rep. (CCH) P30,106.

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