Tag Archives: Standing

South Park’s Use of “Butt” Deemed Fair Use

Why is the United States District Court of the Eastern District of Wisconsin discussing South Park’s butt?  In this case Brownmark Films, LLC sued Comedy Partners et al (“Comedy Central”) over a music video entitled “What What (In the Butt)” (“WWITB”), “a nearly four minute ditty regarding the derrière of the singer of the underlying work” that went viral on YouTube and garnered more than 40,000,000 views.  The Court describes the case thusly,

“The heart of the video features an adult African American male ensconced in a bright red, half-buttoned, silk shirt, dancing, grinning creepily at the camera, and repeatedly singing the same cryptic phrases: “I said, what what, in the butt” and “you want to do it in my butt, in my butt.”  Meanwhile, the defendants are the entities involved in the production of “South Park,” an animated sitcom that centers on the happenings of four foul-mouthed fourth graders in a small mountain town in Colorado.”

This is a ruling on a summary judgment motion by defendant Comedy Central.  The issue at hand is whether the South Park episode entitled “Canada on Strike,” in which one of the characters—the naive “Butters Stotch”—is coaxed by his fellow classmates to record an internet video that replicates parts of the WWITB video infringes Brownmark’s copyright.  In the South Park episode, the nine-year old Butters makes his own music video featuring the central lines of the original video, while dressed as a teddy bear, an astronaut, and even as a daisy, in the hopes of making money on the Internet.  In the episode, Butters’ video, much like the original WWITB video, goes “viral,” with millions watching the clip.

The court examines the procedural issue of whether Brownmark as legal standing to sue as related to copyright interests.  It concludes that Brownmark does have standing because it holds a non-exclusive right to the music video in question.

The court next addresses “fair use.” But first, the Court must determine whether the Court, in a motion for summary judgment, can resolve a motion to dismiss in the defendants’ favor because of the existence of fair use as an affirmative defense.  The Court concludes that the issue of fair use may be properly addressed because,

“Ultimately, “context is king” in this case in deciding whether the plaintiff has provided in its complaint and the materials referenced in that complaint the necessary information to warrant a dismissal based on an affirmative defense. Here, the amended complaint discusses a very limited context for the alleged infringement.”

The court held that parody is fair use and South Park’s use of Brownmark’s work was parody.  The Court readily concluded that the “defendants use of the music video in the South Park episode was “fair”” under the fair use doctrine of copyright law.

“The fair use doctrine allows for a “limited privilege in those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner’s consent.” The rationale behind the doctrine is that unauthorized uses of a copyright are permissible when they “advance the underlying constitutional purpose of copyright law: to promote broad public availability of literature, music, and other forms of creative arts.”  Specifically, 17 U.S.C. § 107, which codifies common law fair use principles, provides that the “fair use of a copyrighted work” for such purposes as “criticism” and “comment” “is not an infringement of a copyright.” Moreover, the statute provides four guideposts by which to determine whether a particular use is “fair”: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and 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.” (internal citations omitted)

The Court determined that South Park’s use of Brownmark’s copyrighted material was covered by the fair use exception of copyright law as parody.  As the court explained,

One only needs to take a fleeting glance at the South Park episode to gather the “purpose and character” of the use of the WWITB video in the episode in question. The defendants used parts of the WWITB video 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.  The South Park episode “transforms” the original piece 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.  The episode then showcases the inanity of the “viral video” craze, by having the South Park fourth graders’ version of the WWITB video “go viral,” seemingly the natural consequence of merely posting a video on the internet.  More broadly, 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 simultaneous assigns little monetary value to such works.  The South Park “take” on the WWITB video is truly transformative, in that it takes the original work and uses parts of the video to not only poke fun at the original, but also to comment on a bizarre social trend, solidifying the work as a classic parody.

Comedy Central’s motion to dismiss was granted, with prejudice.  The Court noted the prejudice and its displeasure with what he deems to be a waste of Court time by Brownmark’s lawyers’ incompetence.

The court’s order is below:
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Righthaven Can’t Stand

“Once I never could hope to win
You starting down the road leaving me again
The threats you made were meant to cut me down
And if our love was just a circus you’d be a clown by now”
Elton John, I’m Still Standing, Too Low for Zero © 1983

The now infamous copyright troll Righthaven wishes it was still standing.  It appears, however, that Righthaven and Stevens Media, owner of the Las Vegas Review-Journal (“LVRJ”) forgot to read the Copyright Act before they put their plan of suing bloggers for infringement in motion.  Chief District Judge Roger Hunt of the District of Nevada, on the other hand, appears to be quite familiar with the Copyright Act’s standing requirements.

By way of background, Stevens Media entered into a Strategic Alliance Agreement (“SAA”) with Righthaven under which Stevens Media allegedly assigned its copyrights to articles appearing in the LVRJ t0 Righthaven, who would then bring suit against websites that copied portions of (or in some instances entire) LVRJ articles.  Under the terms of the SAA, Stevens Media’s “assignment” to Righthaven appeared to be only a (limited) right to bring copyright infringement suits.

For example, Sec. 7.2 of the SAA states: “Despite any such Copyright Assignment, Stephens Media shall retain (and is hereby granted by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery.  To the extent that Righthaven’s maintenance of rights to pursue infringers of the Stephens Media Assigned Copyrights in any manner would be deemed to diminish Stephens Media’s right to Exploit the Stephens Media Assigned Copyrights, Righthaven hereby grants an exclusive license to Stephens Media to the greatest extent permitted by law so that Stephens Media shall have unfettered and exclusive ability to Exploit the Stephens Media Assigned Copyrights. . . .

The court concluded that this purported assignment was a sham because it failed to actually assign any of the exclusive copyrights Stevens Media may have held.  Under 17 U.S.C. § 501(b), only the legal or beneficial owner of one of the exclusive rights under § 106 of the Copyright Act is entitled, or has standing, to sue for infringement.  Because the right to sue is not one of the exclusive rights granted under § 106, the assignment of a bare right to sue is ineffectual and the purported assignment does not confer standing on the assignee.  As Judge Hunt concluded, “One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright.”

Judge Hunt’s characterization of Stevens Media and Righthaven’s legal arguments is, to say the least, harsh.  “Righthaven argues that the SAA’s provisions, which necessarily include Section 7.2, do not alter the unambiguous language of the Assignment or limit the rights it obtained from Stephens Media in the Assignment. This conclusion is flagrantly false—to the point that the claim is disingenuous, if not outright deceitful.” (emphasis added)

Following as this does on the heals of another significant legal loss, in which District Judge James Mahan (also of the District of Nevada) found that the wholesale copying of a 33-paragraph LVRJ article by an Oregonian non-profit was “fair use” under § 107, Stevens Media and Righthaven surely look like clowns.

The order is below
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