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ANSWER: YES, it is a fair use.

(Click here to find out what the question was).

The court didn’t think this was a very close question*:

Here, applying the statutory factors from Section 107 of the Copyright Act and the principles behind the fair use doctrine, the court readily concludes that the defendants use of the music video in the South Park episode “Canada on Strike” was “fair.” One only needs to take a fleeting glance at the South Park episode to gather the “purpose and character” of the use of the WWITB video in the episode in question. The defendants used parts of the WWITB video to lampoon the recent craze in our society of watching video clips on the internet that are – to be kind – of rather low artistic sophistication and quality. 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 naive and innocent nine-year old boy dressed in adorable outfits. 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. 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 assigns little monetary value to such works. The South Park “take” on the WWITB video is truly transformative, in that it takes 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. See Campbell, 510 U.S. at 580 (noting that a “parody” comments “on the original or criticiz[es] it to some degree.”) Such use of a copyrighted work, which uses the work and transforms it for another purpose, lends this court to conclude that the defendants’ use is fair. Id. at 579 (holding that “the more transformative the new work,” the more likely the use of the old work is a fair one); see generally KELLER AND CUNARD, COPYRIGHT LAW: A PRACTITIONER’S GUIDE § 8.5.5 (“The special nature of parodies . . . make a finding of fair use more likely.”).

Beyond the “purpose and nature of the work” statutory factor, the court also looks to the remaining issues raised in Section 107 of the Copyright Act. The “nature” of the copyrighted work factor is not particularly helpful to the court, however: while fair use is more difficult to establish when a core work is copied as opposed to when an infringer takes material that is only marginally within copyright protection, the “nature” of the copyright in question does not help this court assess whether South Park’s parody is a fair use, because “parodies almost invariably copy publicly known, expressive works.” Campbell, 510 U.S. at 586. Additionally, the court notes that the use of the copyrighted work in the South Park episode was relatively insubstantial. The defendants’ work did not mirror the original WWITB video – indeed, the derivative work was a cartoon of a nine year old boy repeating just enough lines WWITB to conjure up the original work. Notably, the WWITB snippet in the South Park episode was less than a third of the length of the original work. The use of the imagery and words of the original work was all but the minimum needed by the defendants to accomplish their goal of commenting on a social phenomenon. Substance, 354 F.3d at 629. Finally, there is little risk that derivative work in question would somehow usurp the market demand for the original: the South Park episode lampoons viral video crazes, while the WWITB video is the epitome of a clip that fuels such crazes. Campbell, 510 U.S. at 524 (“[T]here is no protectible derivative market for criticism.”) Looking at the Section 107 factors together, keeping in mind the purposes of the fair use doctrine, the court can easily conclude that South Park’s parody of the WWITB video falls squarely within the fair use protections afforded by the Copyright Act. If the use by the defendants of the copyrighted work is somehow “unfair,” it remains at the wholly speculative level, leaving the court with no choice but to grant the defendants’ motion to dismiss.

* Wondering why I can so lazily quote so much of the opinion without worrying about copyright infringement? It’s because the opinion is a government work, and there is no copyright in government works. So there.

It’s hard to argue with the court’s analysis here (though the plaintiff is appealing the decision*). The creators of South Park chose the “What What (in the Butt)” video as a means of commenting on viral videos as a whole. Go back and look at the South Park parody. You actually don’t see that much of the parodic video. The focus is mostly on how the video is being consumed by internet viewers. More than anything else, that’s what makes the decision so easy for the judge.

* It’ll be worth keeping an eye on this appeal, but not for the fair-use analysis. The most extraordinary aspect of the opinion is that the judge ruled on a Rule 12(b)(6) motion to dismiss. Such a motion is typically early in the case, usually in response to the complaint itself, and the judge looks at nothing but the complaint, taking its allegations as true for the time being. Only in this case, the judge allowed himself to view the two works on grounds that they were essentially incorporated into the complaint. This might sound arcane, but if the Seventh Circuit lets the ruling stand, the implications are huge. Normally, a defendant with a viable fair-use defense had to wait until later in the case, after a great deal of expense and disruption, before asking the judge to rule on the fair-use defense. If this ruling stands on appeal, defendants might be able to get out much earlier in the case, allowing them to be much more aggressive in asserting their fair-use rights.

You might ask, then, what Brownmark Films was trying to accomplish by suing South Park’s creators and distributors. Here’s a bit of the back story. As I mentioned, South Park actually licensed the underlying music for “What What (in the Butt”). So the songwriters started getting royalties. The video-makers at first were pretty happy about the parody, but then they found out that songwriters were getting paid. They wondered why they shouldn’t be paid, too. Only they didn’t sue for the money, but on principle: “Brownmark Films is taking a stand against these corporations’ continued reliance on double-standards.” The “double-standard” in question is the fact that South Park is aired by Comedy Central, which is owned by Viacom, which is suing YouTube for copyright infringement.

The flaw in their reasoning is fair use. Fair use isn’t an issue in the YouTube case. There’s nothing “fair” about simply uploading other people’s content, and that’s Viacom’s main beef against YouTube. YouTube has a DMCA defense, not a fair-use one.

So, if fair use is so obvious, why did South Park go to the trouble of licensing the song? Watch the South Park parody again. What is being parodied, precisely? It’s not the song. South Park is commenting on viral videos not viral (?) songs (or any other kinds of songs). The song might be a fellow traveler with the video, but its copyright is separate and just as valid as the video’s. It would have been an easy mistake for South Park to make, to assume that, because the fair-use defense would work against a claim for infringement of the video, it would also work against a claim for infringement of the song. But South Park’s lawyers aren’t amateurs.

The result is ironic* and, if you think about it, a bit unfair. It’s the video that makes the South Park parody effective, not the song, but the songwriters got paid, and the video producers got nothing. Perhaps we can understand the plaintiff’s frustration a bit better. Fair use can be a pain. In the butt.

* The other, unmissable irony is that South Park was mocking attempts by ordinary folks to “make money on the internet.” Sadly, the plaintiff just proved that, twice.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.