The American Lawyer: Seventh Circuit Grapples with Sexually Suggestive

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Seventh Circuit Grapples with Sexually Suggestive South Park Parody in Copyright Case

Victor Li

The Litigation Daily

06-08-2012

Chief Justice Warren Burger was once so offended by a free speech case where a protestor wore a jacket that said "F--- the Draft," he refused to say the offensive word during the Justices' weekly conference, warned the lawyers arguing the case to refrain from swearing, and was frightened that the justice writing for the majority would utter the profanity when reading his opinion in open court.

We wonder if the judges on a U.S. Court of Appeals for the Seventh Circuit panel wrestled with the same qualms when they watched the viral video "What What (In the Butt)" to determine whether a "South Park" parody video sung by the character Butters Stotch violated copyright laws. (Trust us, we can't link to the video but you can find it online.) Or perhaps the judges delegated that duty to their clerks. As the court notes, WWITB is a "paean to anal sex."

In a 12-page opinion issued Thursday, the unanimous panel upheld the dismissal of a suit filed by Brownmark Studios, which distributed the original WWITB video. The judges--who made sure to refer to the video as "WWITB" for most of the opinion--held that the parody in the 2008 South Park episode was covered by the fair use doctrine. The judges declined to comment on the plaintiff's choice of a company name.

Davis Wright Tremaine represented South Park Digital Studios, as well as Comedy Partners (whose Comedy Central network airs the show), and parent companies MTV Networks, Paramount Pictures Corporation, and Viacom International.

U.S. district judge J.P. Stadtmueller of Milwaukee dismissed Brownmark's complaint in July 2011 on fair use grounds. Brownmark, represented by Ryan Kromholz & Manion and Professor Caz McChrystal of the University of Wisconsin, argued on appeal that the trial court couldn't rule on fair use at the motion to dismiss phase.

The panel acknowledged that courts rarely rule on affirmative defenses like fair use at the motion to dismiss stage. However, it also held that it was important to stamp out frivolous and potentially expensive lawsuits. "[South Park Digital

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Studios] and amicus, the Electronic Frontier Foundation, remind this court that infringement suits are often baseless shakedowns. Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits," wrote Judge Richard Cudahy.

Finding that the video was "an obvious case of fair use," Cudahy noted that South Park's video was "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. Displaying a firm grounding in South Park trivia, the court included an in-depth character analysis of the "naive" South Park character Butters Stotch. The court also threw in other references to viral videos, such as the Sneezing Panda, and plenty of citations to the Supreme Court case upholding the 2 Live Crew's right to parody Roy Orbison's "Oh, Pretty Woman."

South Park's attorney, Alonzo Wickers IV of Davis Wright, did not respond to a request for comment. Neither did Brownmark's attorneys, Professor McChrystal or Garet Galster of Ryan Kromholz.

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