South Park Digital Studios, Comedy Partners, MTV Networks, Paramount Home Entertainment Inc., and Viacom International Inc. have successfully defended themselves against federal claims of copyright infringement related to an April 2, 2008, episode of the popular Comedy Central television program South Park. Brownmark Films, LLC v. Comedy Partners, No. 10-CV-1013 (E.D. Wis. 2011). Brownmark Films, LLC, co-holder of a copyright in a music video titled, “What What (In the Butt)” (WWITB), claimed that the defendant television studios’ unauthorized replication of the music video entitled the company to damages and injunctive relief.

Brownmark Films’ WWITB video features nearly four minutes of bizarre imagery and an adult singer, adorned in a bright-red, half-buttoned silk shirt, dancing and repeating the same lyrics: “I said, what what, in the butt” and “you want to do it in my butt, in my butt.” In April 2008, the defendants aired an episode of South Park, an animated sitcom that centers on the misadventures of four foul-mouthed grade-schoolers in a small Colorado town, in which one of the characters is convinced to record a music video in the hopes that it goes “viral” and provides an avenue for making money on the Internet. The naïve, nine-year-old character goes on to perform a fifty-eight-second rendition of the WWITB video, dancing and singing the original video’s central lines while adorably dressed at various times as a teddy bear, an astronaut, and a daisy. As intended, the fictional video goes “viral” within the South Park universe—much like the real-world original—but the characters’ later attempts to collect “Internet money” ultimately prove fruitless.

As a result of this episode, Brownmark Films filed suit in federal court, seeking damages and injunctive relief for copyright infringement under the Copyright Act. On July 6, 2011, the U.S. District Court for the Eastern District of Wisconsin granted the defendants’ motion to dismiss, barring the plaintiff’s claim on fair-use grounds. The court, in taking the “irregular” approach of evaluating an affirmative defense at the pleadings stage, noted that the nature of the dispute did not justify imposing the expense of discovery upon the defendants and instead looked to the pleadings and materials incorporated by reference therein to resolve the case.

The fair use doctrine grants a limited privilege to those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner’s consent. Courts look to four, non-exclusive factors written into the Copyright Act when considering a fair use defense: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect on the potential market or value of the copyrighted work.

In assessing South Park’s replication of the WWITB video, the district court applied the fair use doctrine and readily concluded that the defendants’ use was “fair”: (1) the work was a classic parody, transforming the original piece to not only poke fun at the original, but to further comment on the phenomenon of “viral videos” and Internet celebrity; (2) the nature of the copyrighted work itself was not helpful in assessing fair use because parodies almost invariably copy publicly known, expressive works; (3) the derivative work was less than a third of the length of the original video, and its use of the original’s imagery and repetitive lyrics was necessary to successfully conjure the original and comment on a bizarre social phenomenon; and (4) the work posed little risk of usurping the market for the original in that it sought to lampoon viral video crazes, while the original video epitomized such a craze.

Because the defendants had proved that South Park’s use of the original work was fair, the court dismissed the plaintiff’s federal copyright infringement claims. The court further concluded that the dismissal should be with prejudice because Brownmark had twice filed a complaint based on the use of copyrighted work in an episode of South Park, but had failed to address glaring problems with the substance of the underlying dispute, namely, fair use—the central issue of the litigation.

A similar case arose in California when Carol Burnett, an American actress and host of The Carol Burnett Show, sued Twentieth Century Fox Film Corporation for copyright infringement based on an episode of the animated TV series Family Guy that featured a parody of Burnett’s wholesome “Charwoman” character from her 1970s sketch-comedy program. Burnett v. Twentieth Century Fox Film Corp., 491 F. Supp. 2d 962 (C.D. Cal. 2007). During the episode in question, an animated version of the Charwoman is seen mopping the floor of a pornography shop as music evoking The Carol Burnett Show’s theme song plays in the background. This is immediately followed by a scene involving a joke about Burnett’s habit of tugging her ear at the end of her show. In granting the defendant’s motion to dismiss on fair-use grounds, the district court found that one could reasonably perceive Family Guy’s use of the Charwoman as a parody due to its placement of a cartoon version of Burnett in a crude and absurd situation in order to lampoon her as a public figure. In weighing this finding with the remaining fair-use factors in a manner nearly indistinguishable from the South Park court, the court ruled that the fair use defense barred Burnett’s claim.

In another similar case in New York, the host of a public access television show failed to succeed in her copyright infringement suit against the producers of Comedy Central’s faux-news program The Daily Show. Kane v. Comedy Partners, No. 00 Civ. 158(GBD) (S.D.N.Y. 2003). Defendants’ program used a six-second clip of The Sandy Kane Blew Comedy Show to introduce a segment called “Public Excess,” which mocked various public access programs by presenting and commenting on clips of those shows. An even shorter, half-second-long clip of the plaintiff dancing in a bikini was also used in a commercial promoting The Daily Show. In its order granting the defendants’ motion to dismiss, the court reasoned that the first factor of the fair-use inquiry—the purpose and character of the use—weighed strongly in the defendants’ favor because, in presenting plaintiff’s clip, they had sought to critically examine the quality of plaintiff’s public access television show. The court further emphasized that despite the similar market for comedy potentially served by both the source material and the parody, it could not be credibly argued that the Daily Show’s critique of the short clip would siphon away demand for the plaintiff’s comedy routine.