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.
“South Park” is a long-running, animated sitcom about four foul-mouthed fourth-graders living in South Park, Co. The show is known for its commentary on pop culture and current events and for its scatological humor. The lawsuit stems from a “South Park” episode entitled “Canada on Strike” in which the nation of Canada goes on strike, demanding a share of “Internet money” it believes is being generated by viral YouTube videos. The fourth-graders in “South Park” decide to create their own viral video and use the money they make to buy off the striking Canadians.
The video is a parody of WWITB, and recreates a large portion of the original video, using the same camera angles, framing, dance moves and video elements. The primary difference is that the star of the “South Park” video is Butters, a naïve, 9-year old, wearing costumes that call attention to his innocence (e.g., a teddy bear, an astronaut and a daisy). The video lasts for 58 seconds of the 25-minute “South Park” episode. Ultimately, the boys learn that viral videos make no money at all.
The makers of the WWITB video filed suit against the producers of “South Park” for copyright infringement. The district court granted defendants’ motion to dismiss on the grounds of fair use and the 7th Circuit affirmed.
Both the district court and the 7th Circuit went through the same four factor fair use test discussed in my previous article in reaching their respective decisions: 1. Is the work transformative? The first, and, in many ways, most important factor is whether the allegedly infringing work is transformative. That is, does it add something new with a further purpose or of a different character? That factor was easily met here. The use of WWITB in “South Park” plainly commented on and critiqued the viral video phenomenon. As the district court noted: “The South Park episode, with its use of the WWITB video, becomes a means to comment on the ultimate value of viral YouTube clips, as the main characters discover that, while society is willing to watch absurd video clips on the internet, our society similarly assigns little monetary value to such works.”
2. Is the work within the core of copyright protection? Here, the original work, a music video, is within the core of copyright protection, but this factor carries little weight because parodies almost always copy known expressive works (or nobody would understand the parody).
3. Is the use substantial? The district court and the 7th Circuit came to opposite conclusions on this factor, but agreed as to the ultimate result. The district court found the use to be “relatively insubstantial” because the “South Park” work starred an animated 9–year-old boy (rather than an adult African-American male) and because the use in “South Park” was less than one-third of the original work. The 7th Circuit, to the contrary, found the use was “not insubstantial” because “South Park” copied the “heart” of the WWITB work.
But the 7th Circuit went on to find that this did not prevent the use from being considered a fair one. The 7th Circuit noted that to make a successful parody, the parodist must use a “substantial amount of qualitative and quantitative elements to create the intended allusion”; therefore, given this set of facts, the use was a fair one.
4. Is there risk that the derivative work will usurp the market demand for the original? Both the district court and the 7th Circuit concluded that there was no evidence that the “South Park” episode would cut into the market of the WWITB video and, to the contrary, the “South Park” episode most likely created more views of the video (and therefore more advertising dollars for the plaintiff).
Bottom line, a parody use that comments on a copyrighted work and uses no more of the copyrighted work than necessary to tell the joke most likely will be considered a fair use by any court.
1. Brownmark Films, LLC v. Comedy Partners, 800 F. Supp.2d 991, 993 (E.D. Wis. 2011).
2. Id. at 1001.