This is an amazing case about fair use in copyright that involves the continually groundbreaking television cartoon “South Park”. The specific “South Park” episode in question “Canada On Strike” (Original Air Date: 04.02.2008) is available for full viewing at South Park Studios. The plot of the episode is satire of the 2007-2008 WGA strike and parody of some notable viral internet YouTube superstars.

Available on YouTube are the other videos referenced by the court: Plaintiff’s “WWITB“, “the Numa Numa Guy“, “the Sneezing Panda” and “the Afro Ninja.”


BROWNMARK FILMS, LLC, Plaintiff-Appellant,
v.
COMEDY PARTNERS, et al., Defendants-Appellees.

No. 11-2620

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

682 F.3d 687

January 17, 2012, Argued
June 7, 2012, Decided

Counsel:

For BROWNMARK FILMS, LLC, Plaintiff – Appellant: Garet K. Galster, Attorney, RYAN KROMHOLZ & MANION, Milwaukee, WI; Caz McChrystal, Attorney, UNIVERSITY OF WISCONSIN, School of Business & Economics, Stevens Point, WI.

For COMEDY PARTNERS, MTV NETWORKS, PARAMOUNT PICTURES CORPORATION, SOUTH PARK DIGITAL STUDIOS LLC, VIACOM INTERNATIONAL, INCORPORATED, Defendants – Appellees: Alonzo B. Wickers, IV, Attorney, DAVIS WRIGHT TREMAINE LLP, Los Angeles, CA.

ELECTRONIC FRONTIER FOUNDATION, Amicus Curiae: Julie P. Samuels, Attorney, ELECTRONIC FRONTIER FOUNDATION, San Francisco, CA.

Before: Chief Judge Easterbrook, and Circuit Judges Cudahy and Hamilton

Opinion by: Judge Cudahy:

This is a case about how a court may dispose of a copyright infringement action based on the fair use affirmative defense while avoiding the burdens of discovery and trial. This case also poses the interesting question of whether the incorporation-by-reference doctrine applies to audio-visual works.

South Park is a popular animated television show intended for mature audiences. The show centers on the adventures of foul-mouthed fourth graders in the small town of South Park, Colorado. It is notorious for its distinct animation style and scatological humor. The show frequently provides commentary on current events and pop-culture through parody and satire. Previous episodes have dealt with the Florida Recount, the aftermath of hurricane Katrina and the phenomenon of celebrity sex tapes.

This case involves one episode entitled “Canada On Strike,” which satirized the 2007-2008 Writers’ Guild of America strike, inexplicably popular viral videos and the difficulty of monetizing Internet fame. In the episode, the nation of 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 Elementary school boys—Cartman, Stan, Kyle and Butters—decide to create a viral video in order to accrue enough “Internet money” to buy off the striking Canadians. The boys create a video, “What What (In The Butt),” (WWITB) in which Butters sings a paean to anal sex. Within the show, the video is a huge hit, but the boys are only able to earn “theoretical dollars.”

This 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 two versions of WWITB are very similar. The South Park version recreates a large portion of the original version, using the same angles, framing, dance moves and visual elements. However, the South Park version stars Butters, a naïve 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.

Brownmark Films, LLC (Brownmark), the copyright holder for the original WWITB video, filed suit against South Park Digital Studios (SPDS) and others for copyright infringement under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. Brownmark’s complaint referenced both versions of WWITB, but it did not attach either work to the complaint. SPDS responded claiming the South Park version was clearly fair use under § 107, attached the two works and moved for dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Brownmark did not address the substance of SPDS’s fair use defense, but instead argued that the court could not consider fair use on a 12(b)(6) motion to dismiss. 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 appeals, arguing that an unpleaded affirmative defense of fair use is an improper basis for granting a motion to dismiss under Rule 12(b)(6), and that in any event, SPDS’s WWITB video is not a fair use of the original WWITB video. We hold that the district court could properly decide fair use on SPDS’s motion, and we affirm the district court’s finding of fair use.

and:

we agree with the district court that this is an obvious case of fair use. When a defendant raises a fair use defense claiming his or her work is a parody, a court can often decide the merits of the claim without discovery or a trial. 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.

because:

Central to determining the purpose and character of a work is whether the new work merely supersedes the original work, or instead adds something new with a further purpose or of a different character. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994). The underlying purpose and character SPDS’s work was to comment on and critique the social phenomenon that is the “viral video.” Brownmark’s video exemplifies the “viral video.” Through one of the South Park characters—the innocent and naïve Butters—SPDS imitates viral video creation while lampooning one particularly well-known example of such a video. Moreover, the episode places Butters’ WWITB video alongside other YouTube hits including, among others, the Numa Numa Guy, the Sneezing Panda and the Afro Ninja. This kind of parodic use has obvious transformative value, which under § 107 is fair use. See § 107 (preamble); Campbell, 510 U.S. at 579 (“[P]arody, like other comment or criticism, may claim fair use under § 107.”).

concluding:

SPDS’s use of the original WWITB was not insubstantial. Certainly, SPDS used the “heart” of the work; the work’s overall design and distinctive visual elements. Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 565, 105 S. Ct. 2218, 85 L. Ed. 2d 588 (1985). But in the context of parody, “[c]opying does not become excessive in relation to parodic purpose merely because the portion taken was the original’s heart.” Campbell, 510 U.S. at 588. Parody therefore “presents a difficult case.” Id. Indeed, it may even seem as an anomaly under fair use that parody, a favored use, must use a substantial amount of qualitative and quantitative elements to create the intended allusion; there are few alternatives. But when parody achieves its intended aim, the amount taken becomes reasonable when the parody does not serve as a market substitute for the work. See id. (“[H]ow much more is reasonable will depend . . . on the extent to which the [work’s] overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original.”). The South Park WWITB is clearly a parody and has not supplanted the original WWITB.

It follows from the third factor that SPDS’s parody cannot have an actionable effect on the potential market for or value of the original WWITB video under the fourth factor. As the South Park episode aptly points out, there is no “Internet money” for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had. It seems to this court that SPDS’s likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. Id. at 592. And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicating that the South Park parody has cut into any real market (with real, non-Internet dollars) for derivative uses of the original WWITB video.

We agree with the district court’s well-reasoned and delightful opinion. For these reasons, the judgment of the district court is Affirmed.

That district court opinion by Judge Stadtmueller begins:

Federal lawsuits seldom touch on such riveting subjects and regard so many colorful parties as the present matter. The plaintiff, Brownmark Films, LLC (“Brown mark”), is the purported co-owner of a copyright in a music video entitled “What What (In the Butt)” (“WWITB”), a nearly four minute ditty regarding the derrière of the singer of the underlying work. (Am. Compl. ¶¶ 11-13). 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.” Meanwhile, the defendants are the entities involved in the production of “South Park,” an animated sitcom that centers on the happenings of four foul-mouthed fourth 994*994 graders in a small mountain town in Colorado. Id. ¶¶ 6-10. In the nearly fifteen years South Park has aired on Comedy Central, the four central characters have, amongst other adventures, battled space aliens,[1] hunted Osama Bin Ladin in the wake of 9/11 ala Elmer Fudd and Bugs Bunny,[2] and have, more recently, resolved the nation’s economic woes by charging the nation’s consumer debts on one of the character’s credit card.[3]

Brownmark and the makers of South Park find themselves litigating against each other in federal court as a result of an April 2, 2008 episode of the television program. (Am. Compl. ¶ 14). Specifically, Brownmark’s amended complaint seeks damages and injunctive relief for copyright infringement under the Copyright Act, 17 U.S.C. § 101 et seq., against the defendants because of a South Park episode entitled “Canada on Strike.” (Docket # 6). In that episode, one of the characters—the naive “Butters Stotch”—is coaxed by his fellow classmates to record an internet video in the hopes of “making money on the Internet.” The video— which lasts for fifty eight seconds of the approximately twenty-five minute episode—replicates parts of the WWITB video, with the nine-year old Butters singing the central lines of the original video, while dressed as a teddy bear, an astronaut, and even as a daisy. In the episode, Butters’ video, much like the original WWITB video, goes “viral,” with millions watching the clip. However, after their attempts to collect “internet money” prove fruitless, the South Park fourth graders learn that their video, much like other inane viral YouTube clips, have very little value to those who create the work.

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