Readers will recall a previous post (here) discussing the United States District Court of the Eastern District of Wisconsin finding that Comedy Central’s use of the Samwell’s viral video entitled “What What (In the Butt)” (“WWITB”) was fair use. The copyright owner of WWITB, Brownmark Films, appealed the decision, arguing, among other things, that an unpleaded affirmative defense of fair use is an improper basis for granting a motion to dismiss under Rule 12(b)(6). In an opinion written by Judge Cudahy, the 7th Circuit affirmed the District Court’s ruling.
Much of the 7th Circuit’s opinion is like a First Year Civil Procedure lecture, full of discussions regarding whether Comedy Central’s filing was a 12(b)(6) motion, a 12(c) motion, or a motion of summary judgment. In the end, the 7th Circuit determined that “district court could properly consider an affirmative defense in the context of a motion for summary judgment, which it did here, regardless of the caption [Comedy Central] used.”
Central in the 7th Circuit analysis was the fact that the only 2 pieces of evidence required by the district court to make its decision were the 2 versions of the WWITB videos, which the district court had. In a hilarious footnote, Judge Cudahy reveals himself as an avid South Park viewer:
Adopting [a summary judgment approach] would have given [Comedy Central] greater freedom in setting out its fair-use defense. In its reply brief, Brownmark makes much of the fact that [Comedy Central] mentions Butters’ naïveté, but had not introduced evidence on Butters’ innocent nature. While we do not feel that this case turns on any such naïveté, [Comedy Central] could have introduced previous South Park episodes to show that Butters has repeatedly demonstrated a lack of understanding of sex. See, e.g., Butters’ Very Own Episode (Comedy Central television broadcast Dec. 12, 2001) (perceiving sex as wrestling), see also Cartman Sucks (Comedy Central television broadcast Mar. 14, 2007); Stupid Spoiled Whore Video Playset (Comedy Central television broadcast Dec. 1, 2004). Indeed, in one of these episodes, Butters is dressed in the same teddy bear costume he wears in the WWITB video. Stupid Spoiled Whore Video Playset (Comedy Central television broadcast Dec. 1, 2004).
I can imagine Judges Easterbrook and Posner scatologically discussing the import of Butters sexual innocence in the context of Saddam Hussein and Satan as gay lovers, existentialism in the repeated the death of Kenny, and whether feminists can enjoy the show due to some of its misogynistic characters.
BTW – Samwell is riding this Butt song as long and as hard as he can. He even has an iPhone app!
The 7th Circuit’s opinion is below:
[scribd id=102872285 key=key-2o72miqz6z9favzeqfwf mode=scroll]