Seventh Circuit Affirms South Park Fair Use Ruling on Motion to Dismiss
Brownmark Films, the alleged co-owner of the copyright in the viral video "What What (In the Butt)" ("WWITB"), sued the entities involved in the production of South Park for copyright infringement relating to an episode of that show that included a parody of the video.
According to the district court's entertaining description, the original WWITB video was
a nearly four minute ditty regarding the derriere of the singer of the underlying work. . . . The music video begins with an array of bizarre imagery -- from a burning cross to a floating pink zeppelin -- and only gets stranger from there. The 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."
The parody, which comprised 58 seconds of the 25 minute South Park episode, recreated much of the original but "star[red] Butters, a naive nine-year old, in a variety of costumes drawing attention to his innocence: at various points he is dressed as a teddy bear, an astronaut and a daisy."
The South Park defendants moved to dismiss under Rule 12(b)(6) based on the affirmative defense of fair use. Critically, Brownmark argued that the district court could not consider a fair use defense on a 12(b)(6) motion to dismiss but did not address the substance of the defendants' fair use claim.
Although the district court noted that evaluating a fair use defense at the pleadings stage was "irregular," it concluded that it was appropriate in this case. The district court then "readily" concluded that "South Park's parody of the WWITB video falls squarely within the fair use protections afforded by the Copyright Act." It thus dismissed Brownmark's complaint with prejudice.
On appeal, the Seventh Circuit's opinion spent a large portion of time on the procedural issues, concluding that the district court could and did properly consider the fair use affirmative defense on a summary judgment motion regardless of the caption for the motion used by the South Park defendants, and that therefore the district court could consider the videos proffered by the defendants in connection with their motion.
Having resolved those issues, the Seventh Circuit, like the district court, had no difficulty in resolving the substantive fair use question.
First, the court held that Brownmark had waived its fair use argument because it never opposed the substance of the fair use defense in the district court but instead had relied on its procedural arguments.
Second, even if the argument had not been waived, the Seventh Circuit held that "the South Park episode is clearly a parody of the original WWITB video, providing commentary on the ridiculousness of the original video and the viral nature of certain YouTube videos."
And because the Seventh Circuit specifically referred to the district court's opinion on the motion to dismiss as "well-reasoned and delightful," I just had to get a copy of it, which can be found here. The district court also later granted the defendants' request for an award of attorneys' fees and costs, which order can be found here.
The case cite is Brownmark Films, LLC v. Comedy Partners, No. 11-2620 (7th Cir. June 7, 2012).
