Welcome to Our Second Episode of “Is it Fair Use?”

This opinion by Judge J.D. Stadtmueller in Brownmark Films, LLC v. Comedy Partners is pretty close to priceless, dealing, as it does, with South Park’s send-up of the notorious “What What (in the Butt)” viral video sensation. Here’s how Judge Stadtmueller introduces the issues and the parties:

Federal lawsuits seldom touch on such riveting subjects and regard so many colorful parties as the present matter. The plaintiff, Brownmark Films, LLC (“Brownmark”), is the purported co-owner of a copyright in a music video entitled “What What (In the Butt)” (“WWITB”), a nearly four minute ditty regarding the derrière of the singer of the underlying work. The music video begins with an array of bizarre imagery – from a burning cross to a floating pink zeppelin – and only gets stranger from there. The heart of the video features an adult African American male ensconced in a bright red, half-buttoned, silk shirt, dancing, grinning creepily at the camera, and repeatedly singing the same cryptic phrases: “I said, what what, in the butt” and “you want to do it in my butt, in my butt.” Meanwhile, the defendants are the entities involved in the production of “South Park,” an animated sitcom that centers on the happenings of four foul-mouthed fourth graders in a small mountain town in Colorado. In the nearly fifteen years South Park has aired on Comedy Central, the four central characters have, amongst other adventures, battled space aliens, hunted Osama Bin Ladin in the wake of 9/11 ala Elmer Fudd and Bugs Bunny, and have, more recently, resolved the nation’s economic woes by charging the nation’s consumer debts on one of the character’s credit card.

I regret that I had to omit the footnotes (as well as some internal citations). They straight-facedly cite the specific South Park episode by name, which only adds to the pricelessness.

I know it’s tempting and I link to it, but don’t read the opinion now! We’re about to play another round of: “Is it Fair Use?”*

* Again, remember that this concept is completely ripped off from the TTABlog, which is awesome and you should read it (I mean, if you like that sort of thing).

OK, here’s the copyrighted work, the video for “What What (in the Butt)” (if for some reason you’ve never seen it). Whatever you do, don’t drink and watch this video!

Now, here’s the South Park send-up of the copyrighted work.

Is the South Park send-up of the “What What (in the Butt)” video a fair use? Refer to this blog post for the guideposts that courts are supposed to use in making the determination. Also, consider this interesting fact: the producers of South Park actually obtained a license for the “What What (in the Butt)” song from the songwriters, but they (obviously) didn’t obtain one from the video producers. Why do you think that would be?

When you’ve made your guess, click here for the answer.

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.