Can South Park Get a 'What What'? 7th Circuit Says Its Fair Use - U.S. Seventh Circuit
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Can South Park Get a 'What What'? 7th Circuit Says Its Fair Use

The Seventh Circuit Court of Appeals ruled last week that a South Park parody of a viral video, (which, in turn, became its own viral video), was clearly a parody of the original and protected under the fair use doctrine, reports TechDirt.

In 2008, South Park incorporated a parody of a video called, "What What (In the Butt)" (WWITB) in one of its episodes. The parody featured Butters, one of the South Park characters, singing WWITB. The Seventh Circuit described it as "a paean to anal sex."

The two versions of WWITB are very similar. The real world video features an adult male singing and dancing in tight pants. The South Park version recreates a large portion of the original version, using the same angles, framing, dance moves and visual elements. The South Park version, however, stars Butters in a variety of costumes.

Brownmark Films, LLC (Brownmark), the copyright holder for the original WWITB video, filed a copyright infringement suit against South Park Digital Studios (SPDS) over the video. SPDS claimed that its version was clearly fair use, and moved to dismiss the case.

The district court concluded that "WWITB video is meant 'to lampoon the recent craze in our society of watching video clips on the internet ... of rather low artistic sophistication'" and granted SPDS's motion to dismiss based on the fair use affirmative defense."

The Seventh Circuit Court of Appeals agreed, concluding that the South Park masterminds had accomplished "the seemingly impossible -- making the 'WWITB' video even more absurd by replacing the African-American male singer with a naive and innocent 9-year-old boy dressed in adorable outfits."

(The Seventh Circuit Court of Appeals should realize that nothing is impossible for South Park creators Trey Parker and Matt Stone, the same duo who narrowly-avoided an NC-17 rating for Team America: World Police, a movie starring marionettes.)

Here, Brownmark botched its appeal because it didn't address SPDS's fair use defense. If a party doesn't address an argument, the court considers it waived, so Brownstone lost on the fair use point without even arguing the point.

Not that it would have made a difference. The Seventh Circuit noted that even if Brownmark were not barred from arguing that SPDS did not engage in fair use, it would agree with the district court that this is an obvious case of fair use.

As Judge Richard Cudahy noted at the outset of this opinion that "the case poses the interesting question of whether the incorporation-by-reference doctrine applies to audio-visual works." The court didn't formally address this issue in its opinion because the parties didn't brief on the matter, but it noted, "We think it makes eminently good sense to extend the doctrine to cover such works, especially in light of technological changes that have occasioned widespread production of audio-visual works."

Considering the frequency with which South Park parodies pop cultural phenomena, it's only a matter of time before the South Park boys get to address this issue in court.

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