“South Park” is an animated sitcom that airs on Comedy Central, and centers on the happenings of four foul-mouthed fourth graders in a small mountain town in Colorado. As the District Court in Brownmark Films, LLC v. Comedy Partners stated, in the nearly 15 years that South Park has been on the air, “the four central characters have, amongst other adventures, battled space aliens, hunted Osama Bin Ladin in the wake of 9/11 ala Elmer Fudd and Bugs Bunny, and have, more recently, resolved the nation’s economic woes by charging the nation’s consumer debts on one of the character’s credit card.” Brownmark Films, LLC, v. Comedy Partners, 2011 U.S. Dist. LEXIS 72684 (E.D. Wis. July 6, 2011) (“Brownmark”). 

The entities involved in the production of South Park found themselves in the middle of a copyright infringement suit because of a South Park episode entitled “Canada on Strike,” which allegedly infringed on Plaintiff Brownmark Films, LLC’s (“Plaintiff” or “Brownmark”) copyright in WWITB (defined below).  In that episode, the naïve “Butters Stotch” (one of the South Park characters) is coaxed by his fellow classmates to record an internet video in the hopes of making money on the Internet. The Internet video replicates parts of the “What What (In the Butt)” (“WWITB”) video, which was a copyrighted video. The Court described the WWITB music video as “a nearly four minute ditty regarding the derriere of the singer of the underlying work.” The Court further explained: “The music video begins with an array of bizarre imagery—from a burning cross to a floating pink zeppelin—and only gets stranger from there. 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.’” Brownmark, the purported co-owner of a copyright in the WWITB music video, filed suit against various entities involved in the production of South Park, alleging copyright infringement. According to Brownmark, the “Canada on Strike” episode has an internet video—which lasts for 58 seconds of the approximately 25 minute episode—replicating parts of the WWITB video, with the 9 year old Butters “singing the central lines of the original video, while dressed as a teddy bear, an astronaut, and even as a daisy.” As the Court noted, “[i]n the episode, Butters’ video, much like the original WWITB video, goes ‘viral,’ with millions watching the clip. However, after their attempts to collect ‘internet money’ prove fruitless, the South Park fourth graders learn that their video, much like other inane viral YouTube clips, have very little value to those who create the work.” The defendants justified their use by claiming “fair use,” which is an affirmative defense to copyright infringement.

In determining whether South Park’s replication of the WWITB video constituted “fair use” to the copyright infringement claim, the Court applied the facts in this case to the elements of “fair use” set forth in Section 107 of the Copyright Act of 1976, as amended (the “Copyright Act”). For background, the Copyright Act provides “copyright protection” for “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a) (emphasis added). Such protection is not extended to ideas or facts upon which the expression is based. 17 U.S.C. § 102(b). Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. 17 U.S.C. § 102(a). The Copyright Act confers several exclusive rights upon copyright owners, including without limitation the exclusive rights to (1) reproduce the copyrighted work; (2) prepare derivative works based upon the copyrighted work; and (3) distribute copies of the copyrighted work to the public by sale or other transfer of ownership. 17 U.S.C. § 106(1)-(3). To establish a prima facie case of copyright infringement, a plaintiff must show (1) ownership of a valid copyright, and (2) violation by the alleged infringer of at least one of the exclusive rights granted to copyright owners by the Copyright Act. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a)). If a plaintiff makes a prima face case of copyright infringement, the defendant may avoid liability if it can establish that its use of the copyrighted material is a “fair use” under Section 107 of the Copyright Act, which is an affirmative defense to copyright infringement. 17 U.S.C. § 107; Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir. 2007).

Section 107 of the Copyright Act states that the “fair use” of a copyrighted work for purposes such ascriticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 17 U.S.C. § 107 (emphasis added). Thus, “fair use” is an affirmative defense to copyright infringement. Perfect 10, Inc., 508 F.3d at 1163. In determining whether the use was a “fair use,” the following factors shall be considered: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (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. 17 U.S.C. § 107. As the Court noted, the “rationale behind the [fair use] 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.’” (Brownmark, quoting Bruce P. Keller and Jeffrey P. Cunard, Copyright Law: A Practitioner’s Guide § 8.3 (2010)). Section 107 expressly provides that the “fair use of a copyrighted work” for such purposes as “criticism” and “comment” “is not an infringement of a copyright.”

Applying the statutory factors from Section 107 of the Copyright Act and the principles behind the fair use doctrine, the Court concluded that defendants’ use of the music video in the South Park episode “Canada on Strike” was “fair.” The Court focused primarily on the “purpose and character” of defendants’ use. The U.S. Supreme Court has stated that “[t]he central purpose of this [factor] is to see . . . whether the new work merely ‘supersedes the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (citations and quotation marks omitted).  Indeed, with respect to the “purpose and character” prong, the Court stated that 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 naïve and innocent nine-year old boy dressed in adorable outfits.” The Court further noted that 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.” In summarizing the “purpose and character prong,” the Court concluded: “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[ly] assigns little monetary value to such works. The South Park ‘take’ on the WWITB video is truly transformative, in that it take 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.”  Also factoring in the Court’s decision was the fact that the use of the copyrighted work in the South Park episode was relatively insubstantial. Notably, the defendants’ work was a cartoon of a nine year old boy repeating just enough lines from the WWITB video to conjure up the original work, and the WWITB snippet in the South Park episode was less than a third of the length of the original work. Finally, the Court also noted that there was little risk that derivative work in question would somehow usurp the market demand for the original. In conclusion, the Court concluded that South Park’s parody of the WWITB video “falls squarely within the fair use protections afforded by the Copyright Act.”

The next time South Park mimics, parodies, or otherwise makes a mockery of a copyrighted music video, the copyright owner(s) should think twice before bringing a copyright infringement lawsuit since South Park’s infringing use may constitute “fair use.”