CHICAGO (CN) – The YouTube video supposedly made by “South Park” character Butters that closely resembled a real life YouTube sensation is protected as fair use, the 7th Circuit ruled.
Brownmark Films sued South Park Digital Studios over a music video titled “What What (In the Butt),” dryly described by 7th Circuit Judge Richard Cudahy as “a paean to anal sex.”
The video looks a lot like a real world viral video with the same name and almost 50 million views, using the “same angles, framing, dance moves and visual elements,” according to the ruling.
“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,” Cudahy wrote for a three-judge panel.
The video appeared in a 2008 episode called “Canada On Strike” which satirized the “Writers’ Guild of America strike, inexplicably popular viral videos, and the difficulty of monetizing Internet fame,” the ruling states.
In the episode, Canada goes on strike seeking a share of “Internet money” generated by viral videos. Butters and his friends make “What What (In the Butt)” to buy off the Canadians. Though the video is a hit, the boys are only able to generate 10 million “theoretical dollars.” The strike finally ends when the Canadians receive a Bennigan’s coupon and a piece of gum.
U.S. District Judge J.P. Stadtmueller dismissed the suit and the 7th Circuit affirmed.
“The district court concluded 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 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.”
And Brownmark’s extensive discovery requests gave the company “the appearance of a ‘copyright troll,'” the 7th Circuit wrote, noting that many copyright suits are no more than “baseless shakedowns,” where high discovery and litigation costs are leveraged to force a settlement.
Furthermore, Brownmark’s video did not lose market value as a result of the parody.
“As the South Park episode aptly points out, there is no ‘Internet money’ for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had … It seems to this court that [the South Park video’s] likely effect, ironically, would only increase ad revenue,” Cudahy concluded.
Viacom International, MTV, Paramount Pictures, and Comedy Partners were also defendants in the suit. Digital rights advocacy group Electronic Frontier Foundation submitted an amicus brief supporting South Park in the case.