On 13 July, the alleged copyright infringement against Viacom for stealing the YouTube video
“What What (In the Butt)” was dismissed, with a United States federal judge affirming the “fair use” justification. In November 2010, Brownmark Films (the producer of the video) sued Viacom and Comedy Central for copyright infringement over a South Park episode (the 171st episode to be exact) entitled “Canada on Strike” which aired in 2008. In this episode, Butters is seen performing “What What (In the Butt)” with his “incorrigible cohorts”, recreating the popular video clip. The original “What What (In the Butt)” was written and performed by Samwell and has over 41 million views on YouTube. Samwell was paid by South Park for the use of the song, but Brownmark, the makers of the music video, claimed they failed to get any recognition or compensation from the use of the music video.
Brownmark Films sought an injunction from the re-screening or streaming of the episode, as well as damages, claiming that the use went beyond mere parody. In an interview with AVClub.com Brownmark said: “We understand that fair use is an important legal concept, but the rules need to be more clear. Viacom’s position on fair use is contradictory: whenever they take copyrighted works from someone else, it is fair use; whenever someone takes copyrighted work from them, it’s copyright infringement.”
Comedy Central denied the allegation of copyright infringement, suggesting that parodies are consistently acknowledged by the courts as having extensive protections under the Copyright Act and the First Amendment. Brownmark hit back at Comedy Central’s justification, suggesting that this situation was a satire, not a parody. They claimed that South Park’s “recreation” of their video was simply a repeat of their joke, “their version doesn’t ‘make fun’ of ours, it just ‘does it again’ and that’s not parody.”
To be fair, I don’t think Brownmark quite understood that the humour associated with the character of Butters (always the butt of the joke) singing “What What (In the Butt)” transcends the original. Butter’s version is just one of many YouTube videos used in the episode, including other “popular” hits such as, “Sneezing Panda”, “Dramatic Chipmunk”, “Laughing Baby”, “Afro Ninja” and “Back Dorm Boys”.
In the judgement delivered on 13 July, the judge used the four factor test in order to determine “fair use”. These four factors are:
the reason for the use;
the nature of the work which is copyrighted;
the amount and substance of the part taken; and
the effect of the use on the market.
Having applied the “fair use” test, the judge found that because the clip lasted less than a minute (in a 25 minute episode), it was not significant and would unlikely materially affect the original video’s market enjoyment. He further justified his decision, stating that the South Park writers transformed the original video, achieving “the seemingly impossible – making the WWITB video even more absurd by replacing the African American male singer with a naive and innocent nine-year old boy dressed in adorable outfits.” However, I have a feeling that the judge was not a South Park fan (especially if he thought Butters was innocent).
This case affirms the protection of parodies (try saying that three times), by the judiciary, from allegations of copyright infringement. This view is quite beneficial for the creators of South Park given the show is solely based on making fun of other people and their material (which is more often than not, copyrighted). On a final note, there is said to be a movie, with the same name (Brownmark’s “What What (In the Butt)” … the movie?), in the pipeline. Perhaps if it’s good enough, South Park will parody it.