July 19th, 2011
Earlier this month, a federal court in Wisconsin ruled on a copyright case between Brownmark Films, LLC and the folks behind cartoon South Park (including, Comedy Partners, MTV, Paramount, and Viacom as well as the South Park company), alleging that South Park infringed their copyright in the music video “What What (In the Butt)” (“WWITB”). A 2008 episode of the cartoon, entitled “Canada on Strike,” was about Butters making an internet video in the hopes of having it go viral and make tons of money off it. The video in the cartoon replicates parts of WWITB, with Butters singing most of the song dressed in various costumes. In the end, Butters’ video (like the original) goes viral, but the boys fail to make money. Brownmark Films (alleged owner of the copyright in the original WWITB video) sued South Park for infringing its copyright by using portions of the original WWITB composition.
The defense primarily relied on the fair use doctrine, claiming that the inclusion of WWITB in the South Park episode is a parody of the original work. Based on this argument, this court granted the defendants’ motion to dismiss with prejudice.
Below is a discussion of the various issues in the case and the court’s analysis.
First, the court looked as to whether the plaintiffs had standing to bring the case. Only exclusive owners, not mere licensees, of a copyright have standing to bring a lawsuit claiming copyright infringement. Two of the three creators of the video assigned their interests to Brownmark Films, and the first issue is whether a co-owner of a copyrighted work can grant an exclusive license without all the other co-owners. The court did not find persuasive the 9th circuit case Sybersound Records, Inc. v UAV Corp (517 F.3d 1137), which set forth the rule that all owners of a copyright must join in granting an exclusive license. Instead, the court found the assignment here sufficient to be an exclusive assignment to Brownmark of the two owners’ rights in the copyright, a proper basis for standing to bring a copyright infringement claim.
Fair Use Doctrine
The heart of the case is whether the South Park episode infringed the copyright of WWITB; more specifically, whether the defendant’s use of WWITB is fair use, an affirmative defense in copyright law.
The fair use doctrine allows for certain uses of copyrighted works by people other than the copyright owner without the owner’s consent. Such appropriate uses, such as for purposes of criticism or comment, are not considered infringements. To determine whether a particular use is “fair,” courts look mainly to four factors: (1) the purposes and character of the use; (2) the nature of the copyrighted work; (3) the amount of substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work (17 U.S.C. § 107).
The court reviewed the four factors for the specific case in question. The “purpose and character” of the uses 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,” commenting on the ultimate lack of monetary value of such videos. The opinion notes that the use is transformative of the original “by doing the seemingly impossible – making the WWITB video even more absurd by replacing the African American male singer with a naive and innocent nine-year old boy dressed in adorable outfits.” Further, it is “truly transformative” because it not only pokes fun of the original but also comments on a social trend.
Regarding the other factors, the court found that the use of the work was relatively insubstantial in that it is less than a third of the length of the original work and that there was little risk that the use would usurp the market demand for the original.
And watch both versions of WWITB below.
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