Entertainment Law Matters

The creators of South Park are being sued for copying a music video from YouTube in a 2008 episode of South Park.  The new lawsuit by Brownmark Films, filed in federal court in Minnesota last week, claims that Viacom, Comedy Central, Matt Stone and Trey Parker infringed on its copyright for the video “What What (In the Butt)” (yes, that’s really the name). “What What” is a song by the artist Samwell, and its subject matter is not subtle.  Samwell owns the rights to the song itself, but Brownmark owns the copyright for the video, which first appeared on YouTube in 2007 and became a viral sensation.  The song was sung by the South Park character Butters in a 2008 episode of the show.  Brownmark claims that the South Park episode, called “Canada On Strike,” contains a “shot-for-shot recreation” of significant portions of their original video, and therefore constitutes copyright infringement by South Park. 

It is unclear why Brownmark is filing the lawsuit now – two and a half years after the allegedly infringing episode aired.  Brownmark seems troubled by Viacom’s well-publicized lawsuit against YouTube, alleging that YouTube violated Viacom’s copyrights in its videos by allowing individual users to upload copies of those videos to the site.  That suit was recently dismissed by a federal judge in New York (an appeal is pending).  Brownmark’s press release for its lawsuit stated:

“In a time when corporations like Viacom are actively pursuing billion dollar judgments against video distribution sites such as YouTube, it is unreasonable for those same corporations to treat the Internet as a bottomless well from which it can endlessly draw content without permission, payment, or even acknowledgment of the original artists. Brownmark Films is taking a stand against these corporations’ continued reliance on double-standards, a decision made all the more difficult by Brownmark Films’ respect for South Park and its brand of humor.”

Comedy Central believes the South Park version of “What What” is a parody that fits squarely into the “fair use” exception of copyright law. The fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.  The fair use exception helps to ensure that creativity is not stifled by giving a copyright holder a virtual monopoly on all uses of his or her work.  It is codified in Section 107 of the 1976 Copyright Act, which requires that courts consider four factors in determining whether an allegedly infringing work is a fair use of a copyrighted work:

(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.

The process of weighing these factors can be highly subjective and not all four factors are treated equally, making it difficult to predict outcomes.   For example, most courts analyzing fair use cases involving parodies afford little weight to the second factor, because parodies generally copy well-known, expressive works, which are at the core of copyright protection. Consequently, much of the leading case law focuses on the remaining three factors. 

The first factor turns on whether the parodic nature of the allegedly infringing work can be reasonably perceived.  A parody may be considered “fair use” if it sufficiently “transforms” the original work, even if the parody has a commercial purpose.  For example, in the seminal case of Campbell v. Acuff-Rose, the U.S. Supreme Court held that 2 Live Crew’s “Pretty Woman” could be considered a parodic fair use of Roy Orbison’s “Oh Pretty Woman,” even though 2 Live Crew had a commercial purpose in appropriating parts of Orbison’s song.  In a more recent federal case, entitled Bourne Co. v. Twentieth Century Fox Film Corp., the court found that a song from an episode of Family Guy entitled “I Need a Jew” was a parody of the famous song “When You Wish upon a Star” from the Disney classic movie Pinocchio.

To succeed on the first factor, the South Park defendants will also have to articulate the basis of their parody – essentially whether and in what way the South Park video comments on the original work, as opposed to society at large. 

The South Park case also differs from Campbell and Bourne because in this case, South Park received permission from Samwell to use the song in the episode.  Thus, the central question is whether the video itself – that is, the visual elements and overall look and feel – is a parody of the original YouTube video.  

Try watching both videos without sound and see what you think. While the South Park video does have some similarities to the original, including the framing, the dancing of the characters and some of the costuming, it is not, as Brownmark says, a “shot-for-shot” recreation of the original version.  For instance, it is partly shown from the perspective of the other characters watching the video on “YouToob” from their computers, something which may also play in to the argument of how the South Park version comments on the original.  Thus, the outcome of the third factor – the amount and substantiality of the portion used in relation to the copyrighted work – turns not only on how much was taken of the original, but also how much needed to be taken to effect the defendants’ parodic purpose.

The fourth factor – effect on the potential market or value of the original work – appears to tip in favor of South Park.  It seems unlikely that Brownmark will be able to prove that the South Park episode has caused it any economic harm (apart, perhaps, from the loss of a small fee had the video been licensed for use on South Park).  In fact, the South Park episode has evidently increased the exposure and popularity of the “What What” video: the number of YouTube views increased from 9 million before the South Park episode to 34 million afterwards. One of the purposes of the copyright act is to prevent copycat works from cannibalizing the market for original works.  In this case, the opposite has happened – the alleged infringement has had an undeniably positive effect on the market for the original “What What” video.  There is no doubt that both the South Park parody and this lawsuit have been a boon to the video’s visibility. 

Will the creators of South Park issue a public apology for “What What,” like they did recently for their admittedly “stupid” copying of dialogue from a video on CollegeHumor.com?  Pop culture parody is a staple of the show, and the creators of South Park aren’t hinting that any apologies are forthcoming — Lia N. Brooks