'South Park' Wins "What What In The Butt" Lawsuit

[Brian Damage]

As punishment for suing Viacom, the owners of the YouTube viral video What What (In The Butt) have been ordered to pay up the you-know-what.

In November 2010, Brownmark Films filed a copyright infringement lawsuit against Viacom and Comedy Central over an episode of South Park that allegedly infringed the massively popular music video. In July, a federal judge dismissed the case, finding that South Park characters recreating the super-silly clip was clearly fair use. Now, the judge has also ordered Brownmark to pay Viacom more than $30,000 in attorney fees for making a legal action that interfered with free speech and wasn't a proper way to handle the situation.

What What (In the Butt) is a 2007 music video from a Samwell song that's so ridiculous that it got featured on VH1's Best Week Ever and has now been viewed more than 44 million times.

In 2008, South Park featured their own interpretation in the episode Canada on Strike, featuring the South Park character Butters in place of Samwell.

Brownmark sued but was soundly rejected by a Wisconsin federal judge who described the South Park version as attempting "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."


On November 30, the judge added to the public record about the What What (In The Butt) case, examining Viacom's motion for attorney fees. Judge Stadtmueller writes:

"To begin, the defendants' fair-use argument was very strong, and Brownmark's legal position was objectively unreasonable. The Court took the somewhat rare step of deciding this case at the motion to dismiss stage, precisely because the defendants' fair-use defense was so strong, satisfying all four fair-use factors."

The episode of South Park was a parody, was transformative, only used enough lines to conjure up the original, and the show didn't damage the market for this silly video. "In fact, in this respect, it is most likely that South Park's use would have spurred demand for the original, making the viral video's spread more rapid after its exposure to a national television audience," the judge writes.

Brownmark's motivation for bringing the lawsuit is deemed to be "questionable" since it waited two years to bring the lawsuit and was warned that South Park's use was fair. The judge sees this as evidence that the plaintiff was using "the threat of litigation against the defendants as a sort of 'sword of Damocles'—hanging by a thread over the heads of the defendants while Brownmark attempted to extract a licensing fee."

In order to deter others from going this same route at the cost of free speech, the judge thinks its proper to award $31,525.23.

Viacom had requested $46,775.23 but the judge takes pity because Brownmark is a "very small entity, without extensive assets." The judge also indicates he's willing to knock the fee down more if Brownmark submits documentation of its financial situation.

Of course, the award could go up too. The parties are still in court. Brownmark is appealing the decision to the 7th Circuit, where it's still pending.

http://www.hollywoodreporter.com/thr-esq/south-park-what-what-butt-lawsuit-270863

[robyrob]

totally frivolous lawsuit, not a leg to stand on and they should pay for wasting the court's time.

[JamesG]

"South Park" Wins 'What What (in the Butt)' Legal Fight
6/7/2012
by Eriq Gardner


An appeals court has refused to revive a lawsuit against Viacom subsidiary Comedy Partners over a viral Internet video that was allegedly misappropriated in an episode of "South Park".

Last summer, a Wisconsin federal judge threw out a lawsuit brought by Brownmark Films, owner of web video sensation "What What (In the Butt): from the singer Samwell. The judge decided that the "South Park" parody of the video was a clear case of "fair use."

On Thursday, the 7th Circuit Court of Appeals ruled that while judges can't always address affirmative defenses like fair use in deciding when to dismiss lawsuits, when they have the relevant facts before them, judges have discretion to toss a case at the preliminary stage.







In 2008, "South Park" aired an episode called 'Canada on Strike', which satirized the 2007-08 Writers Guild of America strike, viral videos and the difficulty of monetizing Internet fame.

In the episode, the "South Park" characters create their version of "What What (In the Butt)" to accrue enough "Internet money" to buy off the striking Canadians, an episode that ironically led to the owners of a real-life Samwell video seeking their own compensation in a courtroom.

A federal judge ruled that "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.”

Brownmark was even ordered to pay Viacom's legal fees.







The owner of "What What (In the Butt)" wasn't happy, so the company appealed the judgment. The appeal made strange bedfellows. For instance, the Electronic Frontier Foundation, which has been one of Viacom's most vocal critics in its legal pursuit of YouTube, filed an amicus brief in support of Viacom.

On Thursday, a panel of three judges unanimously agreed that the judge had appropriately dismissed the case.

"Brownmark correctly notes that courts usually should refrain from granting Rule 12(b)(6) motions on affirmative defenses," writes Judge Richard Cudahy in his opinion, referring to the type of motion seeking dismissal for failure to state a claim upon which relief can be granted.

"These defenses typically turn on facts not before the court at that stage in the proceedings. But when all relevant facts are presented, the court may properly dismiss a case before discovery on the basis of an affirmative defense."



The appellate judge says that all that was needed in this instance was the two videos in question: the original "What What (In the Butt)" and the relevant South Park clip.

Viacom gets a win, and the 7th Circuit addresses what judges should do about frivolous copyright infringement lawsuits.







Comedy Partners argued that the appellate circuit should encourage courts to consider affirmative defenses on Rule 12(b)(6) motions to reduce nuisance lawsuits. The judge writes that he is "sympathetic" to that goal but doesn't see the need to enlarge the role of these motions as there are other ways to seek dismissal at preliminary stages of cases.

The reason the broadcaster of "South Park" chose a motion to dismiss instead of a motion for summary judgment, the 7th Circuit supposes, was to avoid opening the door to discovery, which not only would have been expensive but also might have allowed Brownmark a peek at financial data relating to the long-running animated show.

"Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits," writes Cudahy. But he adds that a judge doesn't need to go there. "District courts need not, and indeed ought not, allow discovery when it is clear that the case turns on facts already in evidence."







The judge also confirms that the "South Park" episode qualifed as fair use.

He writes, "When the two works in this case are viewed side-by-side, the 'South Park' episode is clearly a parody of the original 'WWITB' video, providing commentary on the ridiculousness of the original video and the viral nature of certain YouTube videos."

http://www.hollywoodreporter.com/thr-esq/south-park-wins-appeals-court-what-what-butt-334786