Brownmark Films, LLC v. Comedy Partners
40 Media L. Rep. (BNA) 1821, 682 F.3d 687, 102 U.S.P.Q. 2d (BNA) 1974 (2012)
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Rule of Law:
A work that parodies another by using its core elements to comment on the original work and the social phenomenon it represents constitutes a fair use under the Copyright Act. Courts may resolve a clear fair use defense on a dispositive motion before discovery by considering the works themselves, treating the motion as one for summary judgment if necessary.
Facts:
- Brownmark Films, LLC (Brownmark) is the copyright holder for a viral internet video titled “What What (In The Butt)” (WWITB), which features an adult male singing and dancing.
- South Park Digital Studios (SPDS) produces the animated television show South Park, which is known for its satirical commentary on current events and pop culture.
- In an episode titled “Canada On Strike,” SPDS featured a storyline about the characters creating a viral video to earn 'Internet money.'
- The episode included a parody of WWITB, in which the naive nine-year-old character, Butters, sings and dances in a recreation of the original video.
- The South Park version mimicked the original's camera angles, framing, and dance moves but featured the child character in innocent costumes, such as a teddy bear and an astronaut.
- The episode's plot used the parody to comment on and satirize the nature of viral videos and the difficulty of monetizing online fame.
Procedural Posture:
- Brownmark Films, LLC sued South Park Digital Studios (SPDS) in the U.S. District Court, alleging copyright infringement.
- SPDS filed a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), arguing the episode was a clear case of fair use and attached copies of both videos.
- The district court granted SPDS’s motion to dismiss, agreeing that the South Park version was a fair use parody.
- Brownmark Films, LLC, as the appellant, appealed the district court's dismissal to the U.S. Court of Appeals for the Seventh Circuit.
- SPDS was the appellee in the appeal.
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Issue:
Does an animated television show's parody of a viral video, which recreates substantial portions of the original to satirize both the video and the phenomenon of viral internet content, constitute a fair use under the Copyright Act?
Opinions:
Majority - Cudahy, Circuit Judge.
Yes. An animated television show's parody of a viral video is a protected fair use because it is transformative, using the original work to comment on and criticize a broader social phenomenon. First, procedurally, the court holds that while dismissing a case on a 12(b)(6) motion based on an affirmative defense is disfavored, it is proper to resolve the issue at an early stage by treating the motion as one for summary judgment when the only necessary evidence is the two works at issue. This approach prevents plaintiffs from using the threat of expensive discovery to leverage settlements in baseless infringement suits. Substantively, Brownmark waived its argument by failing to address the merits of the fair use defense in the district court. Even so, the court found the South Park version to be an 'obvious case of fair use' after analyzing the four statutory factors. The use was highly transformative (Factor 1) because it did not merely supersede the original but used it to parody the 'viral video' phenomenon. While the original work is creative (Factor 2) and a substantial portion was used (Factor 3), these factors are less significant in the context of parody, where copying the 'heart' of the work is necessary to make the commentary effective. Finally, the parody had no negative effect on the market for the original and may have even increased its viewership (Factor 4).
Analysis:
This decision reinforces the power of the fair use defense, particularly for parody, and provides a procedural pathway for defendants to terminate infringement litigation early. By endorsing the conversion of a motion to dismiss into a motion for summary judgment, the court signals to lower courts that they can and should dispose of clear-cut fair use cases before costly discovery. This potentially curbs the filing of nuisance suits or actions by 'copyright trolls' who rely on the high cost of litigation to extract settlements. The case also affirms that a parody need not limit its commentary to the original work itself but can use the work as a vehicle to critique broader social or cultural trends, expanding the scope of what is considered transformative.
