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… [Read more…]