Seventh Circuit Nips Brownmark Films’ Copyright Claim “In the Butt”

outh Park, the long running television show, is no-stranger to parodies, spoofing everything from High School Musical to The Passion of The Christ. But their humor was not appreciated by Brownmark Films, LLC, (“Brownmark”), who sued the comedy show for copyright infringement when it made fun of its dance video What What (In the Butt) in a 2008 episode. The case is Brownmark Films, LLC v. Comedy Partners, No. 11-2620 (7th Cir. 2012).

This episode “satirized the 2007-2008 Writers’ Guild of America strike, inexplicably popular viral videos and the difficulty of monetizing Internet fame.” In the story line, Canada held a general strike, feeling disrespected and underappreciated by the rest of the world. In exchange for ending the strike, Canada demanded “a share of the ‘Internet money’ believed to be generated by viral videos and other online content.” When world leaders rejected Canada’s demands, “the South Park Elementary school boys – Cartman, Stan, Kyle and Butters – decide to create a viral video to accrue enough ‘Internet money’ to buy off the striking Canadians.” The video, also entitled What What (In the Butt), parodied the original What What (In the Butt) video.

Brownmark sued South Park for copyright infringement and South Park immediately moved to dismiss the complaint, citing fair use under Federal Rule 12(b)(6) and based solely on the pleadings and before any discovery. Brownmark did not dispute the merits of South Park’s fair use claim, but instead argued “that the court could not consider fair use on a motion to dismiss.”

The Court disagreed, and dismissed Brownmark’s claim on the basis of the fair use defense. Brownmark appealed. Judge Cudahy, writing for the Court of Appeals for the Seventh Circuit, agreed with Brownmark that courts usually should refrain from granting Rule 12(b)(6) motions on affirmative defenses, such as fair use that tend to be fact specific, but in this case, the court had everything it needed before it to decide, namely the two videos, and did not need any other facts.

The court went through the required fair use factors and found no doubt that “this was an obvious case of fair use.” In the analysis the court determined that the “South Park episode was clearly a parody of the original What What (In the Butt) video, providing commentary on the ridiculousness of the original video and the viral nature of certain YouTube videos”. Even if the use of the original was substantial, this did not defeat the fair use defense because parodies are given more leeway to “use a substantial amount of qualitative and quantitative elements to create the intended allusion”. As to the fourth factor, the court disagreed that South Park’s parody could have an actionable effect on the potential market or value of the original video but rather the likely effect of South Park’s video would be to increase internet ad revenue for the original video.

As South Park had the last laugh, this case demonstrates both the latitude that courts give to parodies under the fair use analysis and a new willingness by courts to make fair use determination early on in the action by comparing the two copyrighted works without any further discovery.