No Ifs, Ands, or Butts

Victor Li

Corporate Counsel

07-25-2012

South Park is better known for making foul-mouthed jokes than interesting case law, but the definitely-not-for-children cartoon show recently managed to do both. This summer the U.S. Court of Appeals for the Seventh Circuit ruled that the Comedy Central series didn't violate copyright law when it aired a parody of a hit viral video, "What What (In The Butt)."

The facts of Brownmark Films LLC v. Comedy Partners et al. are straightforward enough. On Valentine's Day, 2007, Brownmark posted a video on YouTube of musician Samwell singing "What What (In The Butt)," which has since racked up more than 48 million views. (The Seventh Circuit's decision describes it—accurately—as "a paean to anal sex.") In 2008, South Park aired an episode in which regular character Butters Stotch­ acted in a parody that recreated much of the original video, including camera angles, dance moves, and Samwell's clothes and mannerisms. Brownmark responded by filing an infringement suit against South Park Digital Studios (SPDS), which produces the show, as well as Comedy Partners (whose Comedy Central channel airs the show) and its parent companies.

U.S. District Judge J.P. Stadtmueller of Milwaukee dismissed Brownmark's complaint in July 2011 on fair use grounds. Brownmark, represented by Garet Galster of Ryan Kromholz & Manion and Professor Caz McChrystal of the University of Wisconsin, argued on appeal that the trial court couldn't rule on fair use at the motion to dismiss phase.

On June 7 a unanimous three-judge panel of the Seventh Circuit upheld the suit's dismissal in a 12-page opinion written by Judge Richard Cudahy. The panel acknowledged that courts rarely rule on affirmative defenses like fair use at the motion to dismiss stage. However, the judges also held that it was important to stamp out frivolous and potentially expensive lawsuits. Their opinion notes that the plaintiff's "broad discovery request, surely entailing expensive e-discovery of emails or other internal communications, gives Brownmark the appearance of a 'copyright troll.' "

The judges found that the South Park scene was "an obvious case of fair use" and "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." They were also more than willing to help South Park strengthen its case.

After noting that Brownmark "makes much" of the fact that SPDS hadn't introduced evidence to demonstrate Butters's naïveté, the opinion helpfully gives a list of episodes that the defendants could have provided to show that Butters "has repeatedly demonstrated a lack of understanding of sex," including "Butters's Very Own Episode" (2001), "Stupid Spoiled Whore Video Playset" (2004), and "Cartman Sucks" (2007). Revealing that at least someone at the Seventh Circuit is a very close watcher of the show, the opinion adds, "Indeed, in one of these episodes, Butters is dressed in the same teddy bear costume he wears in the WWITB video."

The judges also displayed an impressive knowledge of viral videos, noting that the South Park episode with the WWITB video "places [it] alongside other YouTube hits including, among others, the Numa Numa Guy, the Sneezing Panda, and the Afro Ninja."

Alonzo Wickers IV of Davis Wright Tremaine, who represented SPDS and its fellow defendants, did not respond to a request for comment, nor did Brownmark's attorneys, McChrystal and Galster.