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A federal appeals court affirmed Thursday that a 2008 South Park parody of a real-world video — “What What (In the Butt)” — did not infringe on the YouTube video of the same name.
The decision (.pdf) by the 7th U.S. Circuit Court of Appeals upheld a lower court (.pdf) which sided with Viacom subsidiary Comedy Partners’ fair-use defense. More important, the outcome affirms the right that you can get an infringement case thrown out of court — via a fair-use defense — without having to go through an expensive trial.
“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,” the appeals court wrote.
The court added that, “this is an obvious case of fair use.”
Brownmark Films, owner of the real-life viral video from singer Samwell, claimed in the lower court and on appeal that there was no fair use and that a judge could not consider a fair-use defense without a full-blown trial. The appeals court disagreed, and sided with a lower court judge who ruled that “one 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.”
A humorous remake of the video was included in a South Park episode entitled “Canada on Strike,” which satirized the 2007-2008 Writers’ Guild of America strike, 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” it believes is being generated by viral videos and other online content. The South Park Elementary school boys—Cartman, Stan, Kyle and Butters—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),” in which Butters sings a paean to anal sex, the appeals court noted.
The Hollywood Reporter summed up the issue: South Park’s producers made “transformative” use of the video by accomplishing “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.”