An excellent discussion of the elements of "fair use" in copyright, from the 7th Circuit, in a case called Brownmark Films v. Comedy Partners (PDF). Via Above The Law.
You can watch the original "paean to anal sex" — "featuring an adult male singing and dancing in tight pants" — here. And the South Park parody — using "a large portion of the original version, using the same angles, framing, dance moves and visual elements" — is here. From the opinion:
The Copyright Act of 1976 sets forth four, non-exclusive factors that a court must consider in determining whether a particular use of a copyrighted work is a fair use: “(1) the purpose and character of the use . . . ; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107 (2006). We consider each factor in turn, ultimately agreeing with the district court’s analysis and findings.I'm not a copyright expert, but I think that's well analyzed. It's good to see parody getting room to breathe, and I think the original artist is better off after having this boost from South Park. His litigiousness makes him less likeable. I can see why he wants his cash, but I don't like copyright litigation as the way to monetize your YouTube videos.
Central to determining the purpose and character of a work is whether the new work merely supersedes the original work, or instead adds something new with a further purpose or of a different character....
Regarding the third factor, SPDS’s use of the original WWITB was not insubstantial. Certainly, SPDS used the “heart” of the work; the work’s overall design and distinctive visual elements.... Parody therefore “presents a difficult case.” Id. Indeed, it may even seem as an anomaly under fair use that parody, a favored use, must use a substantial amount of qualitative and quantitative elements to create the intended allusion; there are few alternatives. But when parody achieves its intended aim, the amount taken becomes reasonable when the parody does not serve as a market substitute for the work....
It follows from the third factor that SPDS’s parody cannot have an actionable effect on the potential market for or value of the original WWITB video under the fourth factor. As the South Park episode aptly points out, there is no “Internet money” for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had. It seems to this court that SPDS’s likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. Id. at 592. And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicating that the South Park parody has cut into any real market (with real, non-Internet dollars) for derivative uses of the original WWITB video.
The case also has some great material for civil procedure fans. The court says South Park should have "captioned" its motion as a motion for summary judgment rather than a motion to dismiss. The court notes the arguments about the fact that Butters is naïve and the lack of evidence on that score. The court says the Butters' naïveté isn't crucial to its analysis, but it nevertheless crafts a footnote pointing us to other South Park episodes establishing the naïveté of Butters:
See, e.g., Butters’ Very Own Episode (Comedy Central television broadcast Dec. 12, 2001) (perceiving sex as wrestling), see also Cartman Sucks (Comedy Central television broadcast Mar. 14, 2007); Stupid Spoiled Whore Video Playset (Comedy Central television broadcast Dec. 1, 2004). Indeed, in one of these episodes, Butters is dressed in the same teddy bear costume he wears in the WWITB video. Stupid Spoiled Whore Video Playset (Comedy Central television broadcast Dec. 1, 2004).
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18 comments:
Who said court decisions were boring?
The "new" work is surprisingly derivative of Eddie Murphy's hilarious Boogie In Your Butt from ca. 1984.
Who said court decisions were boring?
Hysterical. Spit out coffee laughing (SOCL?), honestly.
I tried to get through that as well and failed miserably.
I was always amused that the "paean to anal sex" was by "Brownmark Films"...
Eww.
I wonder what Hitler's gonna say when he learns about this decision.
Butters visits the able (and lucky) few with lovesickness, the plague, head on a pike, who lived in the woods, ambiguous, quiet, perfect detachable penis (obvious emasculation), the last head on the left overreaching and then turn around and walk away.
Isn't this all that was nessessary?
"It seems to this court that SPDS’s likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. "
The funny and chilling part about the SP one is when it shows all the various types of people watching it. They should have gone with that more as the theme of the parody.
I bet Jerry Sandusky was intrigued by this South Park episode.
For the CivPro litigator, it's also an interesting opinion as presenting the theoretical proper course of action without acknowledging the realities of practice. In theory, summary judgment is supposed to be available at any time if further discovery won't change anything. In practice, most judges won't stretch themselves to grant an early summary judgment motion when the defending party requests additional discovery, because it's an easy and pretty impossible to reverse decision to deny summary judgment at that point. So the Seventh Circuit camn say from on high that this should have been a summary judgment motion rather than a 12(b)(6) motion, but the likely result of South Park presenting its motion as a summary judgment motion would have been denial and further discovery.
Fair use of the Hershey Highway. So said Learned Fist.
Butters obliviously maintains a wholesome attitude and mild disposition despite the tragedy and abuse that he frequently encounters
I lament that the institutions of the civilized part of society has to be dragged into a dispute between foul and fouler.
There ought to be a "sewer doctrine"—no court's jurisdiction shall be involved to hear any case involving people who live in the sewer of civilization, and the filthy byproducts of said people. You should have to be a part of civilization to invoke its priveleges.
Until I read this blog entry by Ann I had no idea that Butter's "WWITB" YouTube upload was a parody of a real upload! I've seen it dozens of time, the containing episode "Canada on Srtike" (S12E04) is one of my favorites.
Now, thanks to you Ann, I've seen the original. Yeah... thanks a lot.
I had to watch the whole southpark episode. One of the themes is that "Internet dollars" aren't real dollars. Odd how this sentence is in the opinion:
And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicating that the South Park parody has cut into any real market (with real, non-Internet dollars) for derivative uses of the original WWITB video.
My godsons nickname is Butters.
I'm feeling like Simon today.
Sometimes I want to move to some inhospitable rocky crag.
Whenever some inane thing like this comes up I think, "If only the rocky crag!"
In Brave New World, didn't they send the writer character to a place like that?
An intelligent decision.
The only reason I watched the 'original' was because I learned of it on South Park.
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