South Park and the Butt Song: A Marriage Made in Fair Use Heaven

South Park and the Butt Song: A Marriage Made in Fair Use Heaven

Even the oddest compositions deserve copyright protection. But in a similar vein, even the oddest compositions beckon parody.

Which brings us to the song, What What (In the Butt).

Which then brings us to the animated television show, South Park.

Brownmark Films, LLC co-owns the copyright in a music video entitled What What (In the Butt) (WWITB). The bulk of the four minute song makes reference to the singer's derrière and contains bizarre imagery. The WWITB video went viral and has been watched by millions of viewers.

After WWITB's release, the makers of South Park aired an episode entitled "Canada on Strike." In the episode, one of the characters - the "Butters Stotch" - records an internet video (lasting fifty eight seconds of the twenty-five minute episode) that replicates parts of the WWITB video. The nine-year old Butters sings the central lines of WWITB, while dressed as a teddy bear, an astronaut, and a daisy. The video, much like the original WWITB video, goes viral, though the character is unable to earn any money as a result.

In Brownmark Films, LLC v. Comedy Partners, 2011 U.S. Dist. LEXIS 72684 (E.D. Wis. July 6, 2011) [enhanced version available to subscribers], Brownmark sued South Parker's makers (defendants) for copyright infringement. In response, defendants moved to dismiss, arguing that:

  1. Brownmark lacked standing because only three of the four original copyright holders had assigned their interest in WWITB to Brownmark; and
  2. the claims were barred by the fair-use doctrine.

Initially, the court rejected defendants' standing argument, which relied upon the Ninth Circuit case of Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. Cal. 2008) [enhanced version / unenhanced version available from lexisONE Free Case Law]. Sybersound held that the only means by which a third party could obtain an exclusive license in a copyright of a jointly-authored work was to have "all" of the co-owners grant such a license. In refusing to follow Sybersound, the court cited Seventh Circuit case law, which interpreted the Copyright Act to afford "significant" benefits to a joint owner of a copyrighted work, in that each owner held an "undivided interest in the work," allowing each owner to independently use and license the joint work, subject only to a duty to account to a co-author for any profits. The court went on to hold that "[t]he determination of whether a grant is exclusive or non-exclusive depends on the grant." Citing 1-6 Nimmer on Copyright § 6.10[A][2][d].

Despite rejecting the standing argument, the court agreed with defendants' fair use argument and dismissed the action. The court concluded 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. 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.

(citations and footnotes omitted)

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