Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir. 2012)

The plaintiff, Brownmark Films (“Brownmark”), is the co-owner of a copyright in a YouTube video featuring a man dancing and singing to an original song. The video soon became a YouTube sensation. The defendant, Comedy Partners (“South Park”) is the creator of the popular adult animation series South Park which is notorious for its unique animation style and commentary on current events and pop-culture through parody and satire. In the episode at issue here, Brownmark’s video is recreated using one of the South Park’s naïve characters, Butters, who replaces the dancing man in the original Brownmark video. The episode dealt with, in part, inexplicably popular viral videos such as the one created by Brownmark. Brownmark Films sued South Park alleging copyright infringement as the South Park’s recreation used the “heart” of the work including using the same angles, framing, dance moves, and visual elements. However, here, Butters is dressed in a variety of costumes to draw attention to his innocence – at various points he is dressed as a teddy bear, an astronaut, and a daisy.

South Park argued that its version was clearly fair use under the Copyright Act. The district court agreed and found that this was such an “obvious case of fair use” that it could dismiss the case based on the pleadings alone. Brownmark appealed arguing that the judge could not make a determination of fair use based only on the pleadings. The Court of Appeals disagreed and upheld the district court’s ruling. The Court noted that copyright infringement claims often involve expensive discovery processes and “are often baseless shakedowns.” Because the costs of discovery are so high, it encourages the parties to settle, even in cases where there is a clear case of fair use, such as the case here. Thus, although a determination of fair use customarily is made at the end of the discovery process, it may be done at the pleadings stage “when it is clear that the case turns on facts already in evidence.” Here, the district court could properly determine based solely on the two videos that South Park’s episode parodied the original Brownmark video.