Seventh Circuit affirms 'South Park' fair use ruling

Jessica M. Karmasek Jun. 19, 2012, 10:30am


CHICAGO (Legal Newsline) - A federal appeals court this month ruled that the use of a viral video by the popular animated television show "South Park" is permissible under the First Amendment.

Brownmark Films LLC, the copyright holder for the original "What What (In the Butt)" video, sued South Park Digital Studios, or SPDS, and others for copyright infringement under the federal Copyright Act of 1976.

South Park, a show centered on the adventures of foul-mouthed fourth-graders in the small town of South Park, Colo., frequently comments on current events and pop-culture through parody and satire. It is intended for mature audiences.

At issue is one of the show's episodes entitled, "Canada On Strike," which satirized the 2007-08 Writers' Guild of America strike, popular viral videos and the difficulty of monetizing Internet fame.

In the episode, Canada goes on strike, demanding a share of the "Internet money" they believe is being generated by viral videos and other online content.

The South Park characters -- Cartman, Stan, Kyle and Butters -- decide to create a viral video to accrue enough "Internet money" to buy off the striking Canadians.

The boys create a video, "What What (In The Butt)," or WWITB, in which Butters sings a paean -- a song or lyric poem expressing triumph or thanksgiving -- to anal sex.

Within the show, the video is a huge hit, but the boys are only able to earn "theoretical dollars."

The South Park video is a parody of a real world viral video of the same name, featuring an adult male singing and dancing in tight pants.

The U.S. Court of Appeals for the Seventh Circuit, in its June 7 opinion, admitted the two versions of WWITB are "very similar."

It noted that the South Park version recreates a large portion of the original version, using the same angles, framing, dance moves and visual elements.

However, it stars Butters, a naive 9-year-old, in a variety of costumes drawing attention to his innocence, including a teddy bear, astronaut and daisy, the Seventh Circuit pointed out.

Still, Brownmark sued SPDS for copyright infringement.

Brownmark's complaint referenced both versions -- the viral version and South Park's parody of the video -- but did not attach either work to the complaint.

SPDS claimed the South Park version was clearly "fair use," attached the two works and moved for dismissal for failure to state a claim.

In response, Brownmark did not address the substance of SPDS's fair use defense, but instead argued that the U.S. District Court for the Eastern District of Wisconsin could not consider fair use on a motion to dismiss.

In its September 2011 ruling, the district court concluded that "(o)ne only needs to take a fleeting glance at the South Park episode" to determine that its use of the WWITB video is meant "to lampoon the recent craze in our society of watching video clips on the Internet... of rather low artistic sophistication and quality" -- in other words, fair use.

The court granted SPDS's motion to dismiss based on the fair use affirmative defense.

Brownmark appealed to the Seventh Circuit, arguing that an unpleaded affirmative defense of fair use is an improper basis for granting a motion to dismiss, and that in any event, SPDS's WWITB video is not a fair use of the original.

The Seventh Circuit said in its 12-page ruling that the district court could properly decide fair use on SPDS's motion, and affirmed the lower court's finding of fair use.

Brownmark, in its appeal, pointed to the caption on the motion to dismiss, arguing that such a motion does not allow for discovery requests.

"And as we noted above, the district court required only the two videos to adjudicate this issue, especially in light of Brownmark's failure to make any concrete contention that the South Park episode reduced the financial returns from the original WWITB video," Judge Richard D. Cudahy wrote for the Seventh Circuit.

"The district court could properly consider an affirmative defense in the context of a motion for summary judgment, which it did here, regardless of the caption SPDS used."

Cudahy continued, "Since Brownmark never opposed SPDS's fair use argument in the district court, we consider the argument waived."

Even if Brownmark were not barred from offering argument that SPDS did not engage in fair use, the Seventh Circuit agreed with the district court that the suit is an "obvious" case of fair use.

"When the two works in this case are viewed side-by-side, 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," Cudahy wrote.

From Legal Newsline: Reach Jessica Karmasek by email at

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