The producers of the popular Comedy Central television program South Park have again emerged victorious in their dispute against Brownmark Films, LLC, which had filed a federal copyright infringement suit in 2010 alleging that the studios’ replication of its copyrighted music video in a 2008 South Park episode titled Brownmark Films to damages and injunctive relief. Brownmark Films, LLC v. Comedy Partners, No. 11-2620 (7th Cir. June 7, 2012). A unanimous panel of the US Court of Appeals for the Seventh Circuit upheld the dismissal of the suit, ruling that the parody shown in the South Park episode was protected by the fair-use doctrine.

As previously discussed by Arent Fox in Another Fair-Use Victory for the Studios: Makers of South Park Immune from Copyright Infringement Claim of Viral Video Creator, the “What What (In the Butt)” (WWITB) video features nearly four minutes of bizarre imagery and an adult male dancing in tight pants while singing “a paean to anal sex.” In April 2008, the defendants aired an episode of South Park that included a parody of the WWITB video, which recreated major portions of the original by using identical angles, framing, dance moves, and visual elements, but starred a naïve, nine-year-old character wearing a variety of costumes that drew attention to his innocence.

On July 6, 2011, the US District Court for the Eastern District of Wisconsin granted the defendant’s motion to dismiss, barring the plaintiff’s claim on fair-use grounds. In taking the “irregular” approach of evaluating an affirmative defense at the pleadings stage, the district court reasoned 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. On appeal, the plaintiff argued that this was procedurally defective, but the Seventh Circuit came to the opposite conclusion, ruling that the district court had properly decided the fair-use issue on the defendants’ motion to dismiss. In doing so, the panel determined that because the plaintiff could not have offered any evidence in response to the assertion of the affirmative defense—that is, the district court required only the two videos in order to adjudicate the issue—the motion to dismiss could be deemed a motion for summary judgment, a context in which a district court may properly consider an affirmative defense. It reasoned that the caption the defendant used to label its motion was irrelevant to the resolution of this issue.

In turning to the merits of the claim, the Seventh Circuit found that South Park’s video was “an obvious case of fair use,” noting that it was “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.” It ultimately agreed with the district court’s “well-reasoned and delightful opinion” and affirmed the order dismissing the plaintiff’s suit.

Arent Fox is continuing to monitor this case as well as other cases involving copyright infringement. For more information on this case or on fair use of copyrights in general, please contact Anthony Lupo, Sarah Bruno, or Anthony Peluso.