The makers of "South Park" did not commit copyright infringement when they parodied a YouTube video that features a song about anal sex, a federal appeals court held today.
The 7th U.S. Circuit Court of Appeals declined to revive the lawsuit that Brownmark Films LLC filed against South Park Digital Studios (SPDS) and others over the episode "Canada On Strike."
In the episode, the foul-mouthed fourth-graders of South Park, Colo., create a video in which the naive Butters sings "What What (In The Butt)," or WWITB, the court said.
The court said the same song gets sung by a man in a video that went viral on the Internet. Brownmark holds the copyright on the original video.
The court conceded that the use of the original WWITB in the "South Park" episode "was not insubstantial."
But the South Park episode added something new to the original video in the form of a critique on modern culture, the court said.
"When the two works in this case are viewed side by side, 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," Judge Richard D. Cudahy wrote for a three-member panel of the 7th Circuit.
The panel also said the "South Park" video did not hurt the value of the original video.
In fact, the "South Park" video may have increased the original's value, the panel said.
"As the 'South Park' episode aptly points out, there is no 'Internet money' for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had," Cudahy wrote. "It seems to this court that SPDS's likely effect, ironically, would only increase ad revenue."
The panel said it agreed with the "well-reasoned and delightful opinion" of U.S. District Judge J.P. Stadtmueller of the Eastern District of Wisconsin holding that the use of the WWITB video on "South Park" constituted fair use under Section 107 of the Copyright Act of 1976.
The panel said it agreed with Stadtmueller on another matter as well.
SPDS responded to Brownmark's suit by arguing that the "South Park" video was fair use and asking Stadtmueller to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
Brownmark countered that an affirmative defense of fair use was not a proper basis for granting a motion to dismiss under Rule 12(b)(6).
Stadtmueller rejected that argument and so did the 7th Circuit.
"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," Cudahy wrote.
Joining the opinion were Chief Judge Frank H. Easterbrook and Judge David F. Hamilton. Brownmark Films LLC v. Comedy Partners, et al. No. 11-2620.
Professor Chaz McChrystal of the University of Wisconsin's School of Business and Economics argued the case before the 7th Circuit on behalf of Brownmark. Los Angeles attorney Alonzo B. Wickers IV of Davis, Wright, Tremaine LLP argued the case on behalf of SPDS and the other defendants.
The attorneys could not be reached comment.