What “South Park” can teach us about fair use

In my last column, I discussed the general principles of fair use. In this column, I'll talk about a specific kind of fair use—parody—and a 7th Circuit case that came down in June that perfectly illustrates how a parody can be a fair use.

The case is Brownmark Films, LLC v. Comedy Partners et al., F.3d (7th Cir. June 7, 2012), and it involves a dispute between the makers of a viral YouTube video entitled “What What (In the Butt)” (WWITB) and the producers of the television series “South Park.”

As the district court tactfully put it, the plaintiffs' music video was a “four minute ditty regarding the derrière of the singer of the underlying work.”¹ The music video contains bizarre imagery, such as a burning cross and a floating pink zeppelin, and stars an adult African-American male dancing and (to put it politely) singing about anal sex.