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: