Brownmark Films v. Comedy Partners
EFF supported Viacom in a lawsuit over a parody of a popular online video called “What What (In the Butt),” arguing that South Park’s reimagining of the work is 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, accusing South Park of infringement. A federal judge dismissed the case, calling it a clear fair use. Brownmark appealed to the 7th U.S Circuit Court of Appeals, claiming that fair use cannot be decided on a motion to dismiss, no matter how obvious. In an amicus brief, EFF argued that Brownmark was asking for a standard that would chill free speech and encourage frivolous litigation.
In a June 2012 opinion, the appeals court affirmed the district court's decision that the South Park parody was fair use. Importantly, the appeals court also agreed that it was proper to dispose of the case early, on a motion to dismiss, without lengthy discovery. This procedural tool helps defendants who fight back against copyright trolls; the appeals court approvingly cited EFF's amicus brief, noting that "infringement suits are often baseless shakedowns."