South Park Cites Fair Use, Wins “What What (In The Butt)” Infringement CaseBy: Josh Wolford - June 8, 2012
According to a ruling from the 7th U.S. circuit Court of Appeals, Butters is not a copyright infringer.
The court upheld a lower court decision that ruled Viacom’s Comedy Partners were correct in their fair use defense concerning a 2008 South Park episode that lampooned a classic viral video from 2007 – Samwell’s “What What (In The Butt), which currently sits at over 47 million views.
The lower court said that South Park’s version featuring the character Butters made “transformative” use of the original by somehow doing “the seemingly impossible — making the ‘WWITB’ video even more absurd by replacing the African-American male singer with a naive and innocent 9-year-old boy dressed in adorable outfits,” according to The Hollywood Reporter.
Brownmark Films, owners of the original What What (In The Butt) video claimed that the lower court had no right to consider a fair-use defense and throw out the case before a trial. The appeals court sided with the lower court.
The crux of the decision rests on the fact that Brownmark cannot now oppose the claim of fair use, and even if they could they would fail because South Park’s version is a clear parody that “comments” on the original:
This matter is simple because Brownmark, in response to SPDS’s motion, did not address fair use as applied to the WWITB videos, and instead insisted that the court could not consider the matter at a 12(b)(6) stage. Since Brownmark never opposed SPDS’s fair use argument in the dis tric t court , we conside r the argument waived.
However, even if Brownmark were not barred from offering argument that SPDS did not engage in fair use, we agree with the district court that this is an obvious case of fair use. When a defendant raises a fair use defense claiming his or her work is a parody, a court can often decide the merits of the claim without discovery or a10 No. 11-2620
trial. When the two works in this case are viewed side-byside, the South Park episode is clearly a parody of the original WWITB video, providing commentary on the ridiculousness of the original video and the viral nature of
certain YouTube videos.
One of the big things, long-term, that comes from this decision is that it affirms that it is possible to use the fair-use defense to get the case thrown out in the early stages of the suit.
When all relevant facts are presented, the court may properly dismiss a case before discovery…
Despite Brownmark’s assertions to the contrary, the only two pieces of evidence needed to decide the question of fair use in this case are the original version of WWITB and the episode at issue.
Basically, all the court needed to see was the two videos side by side and they could make a decision. It was that obvious.
I mean, take a look for yourself:
Pretty open and shut from my point of view. If nothing else, these legal proceedings were worth it just to see What What (In The Butt) slip into the official record, abbreviated as “WWITB.”