Music Video Owner Takes One In The … : South Park Spoof Held Fair Use

Comedy Part­ners, and other enti­ties behind the still-going-strong ani­mated com­edy show South Park, won big recently in the East­ern Dis­trict of Wis­con­sin when they won a dis­missal on fair use grounds. It is rel­a­tively rare for a copy­right defen­dant to pre­vail on fair use at the motion to dis­miss phase, before an answer is filed or dis­cov­ery is taken.   In this case, how­ever, the court was able to take judi­cial notice of the plaintiff’s music video and the allegedly infring­ing South Park episode and found fair use with­out recourse to any other exter­nal evi­dence necessary.

The case involves the music video for a song titled “What What (In the Butt).”  As described by the court, “[t]he heart of the video fea­tures an adult African Amer­i­can male ensconced in a bright red, half-buttoned, silk shirt, danc­ing, grin­ning creep­ily at the cam­era, and repeat­edly singing the same cryp­tic phrases: ‘I said, what what, in the butt’ and ‘you want to do it in my butt, in my butt.’”  Not every day you read some­thing like that in a judi­cial opin­ion, but when you do it almost invari­ably is in a copy­right case… In any event,  copy­right in the music video is owned by the unfortunately-named Brown­mark Films, LLC.  Appar­ently, this music video went viral on YouTube, becom­ing an inter­net sen­sa­tion, and thereby got on the radar of the cul­tural crit­ics at South Park.  They devised a sce­nario for the show in which the char­ac­ter But­ters (a fourth grade stu­dent at South Park Ele­men­tary) is encour­aged by his school­mates to record an inter­net video in hopes that it will go viral and lead to a big pay­day for the kids.  The result­ing video fea­tures But­ters per­form­ing part of “What What (In the Butt)”, includ­ing par­tial re-creations of the orig­i­nal music video, in car­toon form, while dressed as a teddy bear, and astro­naut and a daisy.  Mir­ror­ing the events asso­ci­ated with the orig­i­nal music video, Butters’s video is a huge suc­cess, with mil­lions of hits.

Brown­mark sued the defen­dants, alleg­ing copy­right infringe­ment from the use of the song and video in the episode.  The dis­trict court eas­ily found that the South Park use was a par­ody, intended to com­ment on (and mock) both the absur­dity of the orig­i­nal song and video, as well as the viral suc­cess obtained by the video.   As noted by the court, the South Park use did “the seem­ingly impos­si­ble” by “mak­ing the WWITB video even more absurd” than it already was.  Once the court found the use was par­o­dic, you can imag­ine the rest of the story.  The sec­ond fac­tor was irrel­e­vant, the defen­dants only took as much as they needed to achieve their par­o­dic pur­pose, and there is no pro­tectible mar­ket for licensed parodies.

Did the court get it right?  You decide (and feel free to give your opin­ion below).  Here is the orig­i­nal music video:

And the South Park version:

And the dis­trict court’s opinion:





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