June 7, 2012 | By corynne mcsherry

What What!: Appeals Court Affirms South Park Parody Was Obvious Fair Use

In an important ruling for free speech, the Court of Appeals for the Seventh Circuit today affirmed that a parody of a popular online video called "What What (In the Butt)" (NSFW, unless you happen to work at EFF!) was a clear case of fair use and that the district court's early dismissal of the case was correct.

South Park aired the "What What" parody in a 2008 episode critiquing the popularity of absurd online videos. Two years later, copyright owner Brownmark Films sued Viacom and Comedy Central, alleging copyright infringement.  Recognizing the episode was an obvious fair use, a federal judge promptly dismissed the case. Brownmark appealed, claiming that fair use cannot be decided on a motion to dismiss, no matter how obvious.  Viacom fought back, and EFF filed an amicus brief in support, explaining that being able to dismiss a case early in litigation—before legal costs can really add up—is crucial to protect free speech and discourage frivolous litigation.

The appeals court agreed, calling the district court’s decision “well-reasoned and delightful”: 

We hold that the district court could properly decide fair use on [an early motion] . . .  Despite Brownmark’s assertions to the contrary, the only two pieces of evidence needed to decide the question of fair use in this case are the original version of WWITB and the episode at issue.

The opinion joins a growing body of precedent affirming that it's proper to dismiss some copyright cases early, and that it's possible in appropriate cases to determine whether a use is noninfringing without engaging in lengthy discovery. These rulings are important not only to protect speech, but also in fighting back against copyright trolls.  Trolls depend on the threat of legal costs to encourage people to settle cases even though they might have legitimate defenses.  Citing EFF’s brief, Seventh Circuit acknowledged the problem:

[I]nfringement suits are often baseless shakedowns. Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits.

Exactly.  We’re pleased to see another court strike a blow in favor of free speech and explicitly recognize the growing problem of abusive copyright claims.  Let’s hope future courts follow suit.


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