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July 22, 2011 / Erach Screwvala

No Butts About It

Peanut butter and jelly, coffee and donuts, bagels and cream cheese. All classic combinations. Law and funny? Well, not so much. A recent decision involving the animated series South Park gives us an opportunity to discuss parody as a fair use defense to claims of copyright infringement. Ok, so maybe South Park can’t make the law funny, but at least it comes from funny.

The case, Brownmark Films v. Comedy Partners, LLC , involved an internet video cleverly titled “What What (In the Butt).” The video, which the Eastern District of Wisconsin described as containing “an array of bizarre imagery,” went viral on YouTube, generating millions of hits. In an episode of South Park titled “Canada On Strike,” Butters makes an internet video in the hopes of going viral and getting rich in the process.

The original video qualifies for Copyright protection, since copyright protects art — even bad art. The South Park video unquestionably copies directly from the original video. Several visual elements from the original video and Butters repeats the phrase “What What (In The Butt)” just like the performer in the original video. Brownmark sued for infringement. Open and shut case, right?

Not so fast. In response to Brownmark’s claim for copyright infringement, the makers of South Park claimed fair use, arguing that their video was a parody of the original. The District Court agreed.

Fair use permits the use of copyrighted material “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” 17 U.S.C. §107. Parody has long been recognized as a fair use under the Copyright Act. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (Supreme Court held that 2 Live Crew parody of Roy Orbison’s “Pretty Woman” was fair use). But how can we tell the difference between parody and plain infringement?

Parody is an art form that uses imitation and exaggeration to poke fun at an artist, style or genre.  The District Court easily found that the South Park episode was parody.  The District Court held that the point of the South Park video was to “lampoon the recent craze in our society of watching video clips on the internet that are — to be kind — of rather low artistic sophistication and quality.”  In addition, the District Court held that the South Park video actually transforms the original video by making it even more outrageous.  So, the South Park episode is essentially a social commentary on our fascination with the internet and the video represents a central component of the commentary.

Of course, the law being what it is, establishing the parody does not end the analysis.  The Copyright Act sets forth four factors that Courts typically look at to determine whether fair use has been established. Although the statute does not intend these to be exhaustive, they typically form the basis of the Court’s decision.  The statutory factors include “the purpose and character of the use,” the amount of the original work used, and the effect of the use on the value of the original work.

Applying these factors, the District Court had no difficulty finding that the South Park video was fair use.  The Court noted that the South Park video used only enough elements of the original video to make the reference clear and to establish the parody that was the point of the episode.  The District Court further concluded that inasmuch as South Park sought to hold the original video — and the internet video craze in general — up for ridicule, there would be little to no impact on the value of the original work.


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