‘SOUTH PARK’ DID WHAT WHAT?

By Daniel Davidson

Many may be familiar with the funny, over-the-top, make you blush, say “wow,” show South Park which is featured on Comedy Central.  Many may also be familiar with the flamboyant, over-the-top, make you blush, song and video, “What What (In the Butt)” by Samwell.  The reason the adjective sharing music video and TV series are being mentioned in the same story?

They are subjects of a lawsuit filed last November by Brownmark films, the copyright holder of the “What What (In the Butt)” video, against Viacom and Comedy Central for allegedly ripping off the video in an episode of South Park.  In Viacom’s Answer, the company contended that their animated use of the video was a parody and fell in the net of “fair use” exceptions.  Please, enjoy the videos, and then read on.

www.youtube.com/watch?feature=player_embedded&v=fbGkxcY7YFU 

www.southparkstudios.com/clips/165193/what-what-in-the-butt 

Ultimately, a Wisconsin Federal Judge agreed with them by granting the Defendant Summary Judgment on its “fair use” contention.

Let’s take a look at the elements that the Judge weighed to come to their conclusion.  According to 17 U.S.C. §107, “the fair use of a copyrighted work…for purposes such as criticism [or] comment…is not an infringement…”  As many of you would agree, South Park’s use could be likened to a Weird Al parody, minus using the same chorus, and parody can claim fair use.

The four factors engrained by the Courts are:  1.) “the purpose and character of the use, including whether such use is of a commercial nature,” (how transformative the new work is)  2.) “the nature of the copyrighted work,” (usually not very helpful in parody cases because they usually always copy well known works) 3.) “the amount and substantiality of the portion used in a relation to the copyright work as a whole,” (self explanatory) and 4.) “the effect of the use upon the potential market for or value of the copyrighted work.” 

The Wisconsin Judge applied this test and decided that South Park’s use was transformative enough, was only a minute in a 25 minute episode, and wouldn’t affect whatever market that the Samwell video enjoys.

 I think there may have been another factor that the Judge added, saying South Park was simply trying “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.”  (Hinting at a fifth factor of who cares if terrible YouTube videos are parodied).  Cheers.