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In deciding a Fed. R. Civ. P. 12(b)(6) motion, a court may consider documents attached to a motion to dismiss if they are referred to in the plaintiff's complaint and are central to his claim. In effect, the incorporation-by-reference doctrine provides that if a plaintiff mentions a document in his complaint, the defendant may then submit the document to the court without converting defendant's Rule 12(b)(6) motion to a motion for summary judgment. The doctrine prevents a plaintiff from evading dismissal under Rule 12(b)(6) simply by failing to attach to his complaint a document that proves his claim has no merit.
South Park is a popular animated television show intended for mature audiences. The show centers on the adventures of foul-mouthed fourth graders in the small town of South Park, Colorado. It is notorious for its distinct animation style and scatological humor. The show frequently provides commentary on current events and pop-culture through parody and satire. Previous episodes have dealt with the Florida Recount, the aftermath of hurricane Katrina and the phenomenon of celebrity sex tapes. This case involves one episode entitled "Canada On Strike," which satirized the 2007-2008 Writers' Guild of America strike, inexplicably popular viral videos and the difficulty of monetizing Internet fame. In the episode, the nation of Canada goes on strike, demanding a share of the "Internet money" they believe is being generated by viral videos and other online content. The South Park Elementary school boys—Cartman, Stan, Kyle and Butters—decide to create a viral video in order to accrue enough "Internet money" to buy off the striking Canadians. The boys create a video, "What What (In The Butt)," (WWITB) in which Butters sings a paean to anal sex. Within the show, the video is a huge hit, but the boys are only able to earn "theoretical dollars." This video is a parody of a real world viral video of the same name, featuring an adult male singing and dancing in tight pants. The two versions of WWITB are very similar. The South Park version recreates a large portion of the original version, using the same angles, framing, dance moves and visual elements. However, the South Park version stars Butters, a naïve nine-year old, in a variety of costumes drawing attention to his innocence: at various points he is dressed as a teddy bear, an astronaut and a daisy. Brownmark Films, LLC (Brownmark), the copyright holder for the original WWITB video, filed suit against South Park Digital Studios (SPDS) and others for copyright infringement under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. Brownmark's complaint referenced both versions of WWITB, but it did not attach either work to the complaint. SPDS responded claiming the South Park version was clearly fair use under § 107, attached the two works and moved for dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Brownmark did not address the substance of SPDS's fair use defense, but instead argued that the court could not consider fair use on a 12(b)(6) motion to dismiss. The district court concluded that "[o]ne only needs to take a fleeting glance at the South Park episode" to determine that its use of the 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 quality"—in other words, fair use. The court granted SPDS's motion to dismiss based on the fair use affirmative defense. Brownmark appeals, arguing that an unpleaded affirmative defense of fair use is an improper basis for granting a motion to dismiss under Rule 12(b)(6), and that in any event, SPDS's WWITB video is not a fair use of the original WWITB video
Is an unpleaded affirmative defense of fair use an improper basis for granting a motion to dismiss under Rule 12(b)(6)?
Because the claim was limited to the production and distribution of a single TV episode, the district court was correct to rely solely on the two expressive works referenced in Brownmark’s amended complaint and attached to defendants' motion, as well as the allegations in the complaint, to decide the fair use defense. Defendants relied on the incorporation-by-reference doctrine to maintain that reliance on the attached works did not violate Fed. R. Civ. P. 12(d), which required that Rule 12(b)(6) or 12(c) motions containing materials outside of the pleadings be converted into motions for summary judgment. But rather than decide whether the videos could be incorporated-by-reference in the motion to dismiss, the court elected to treat the motion as a motion for summary judgment, which was how it should have been captioned in the first place. The district court required only the two videos to adjudicate the issue. It could properly consider the affirmative defense in the context of a motion for summary judgment, which it did. Since Brownmark never opposed defendant's fair use argument in the district court, the argument was waived on appeal.