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Brownmark Films v. Comedy Partners

Brownmark Films v. Comedy Partners

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Published by gesmer
Copyright, parody, South Park
Copyright, parody, South Park

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Published by: gesmer on Jul 08, 2012
Copyright:Attribution Non-commercial

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12/29/2012

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In the
United States Court of Appeals
 For the Seventh Circuit
 
No. 11-2620B
ROWNMARK
F
ILMS
 ,
 
LLC,
Plaintiff-Appellant
 ,
v.
C
OMEDY
P
ARTNERS
 ,
 
et al
.
 
Defendants-Appellees
. 
Appeal from the United States District Courtfor the Eastern District of Wisconsin.No. 10-cv-01013-JPS
 — 
J.P. Stadtmueller
 ,
 Judge
.
 
A
RGUED
 J
ANUARY
17,
 
2012
 — 
D
ECIDED
 J
UNE
7,
 
2012
 Before E
ASTERBROOK
 ,
 
Chief Judge,
and
 
C
UDAHY
andH
AMILTON
 ,
Circuit Judges
.C
UDAHY
 ,
Circuit Judge
. This is a case about how a courtmay dispose of a copyright infringement action basedon the fair use affirmative defense while avoidingthe burdens of discovery and trial. This case also posesthe interesting question of whether the incorporation-by-reference doctrine applies to audio-visual works.
 
2No. 11-2620
South Park
is a popular animated television show in-tended for mature audiences. The show centers onthe adventures of foul-mouthed fourth graders in the smalltown of South Park, Colorado. It is notorious for its distinctanimation style and scatological humor. The show fre-quently provides commentary on current events and pop-culture through parody and satire. Previous episodeshave dealt with the Florida Recount, the aftermathof hurricane Katrina and the phenomenon of celebritysex tapes.This case involves one episode entitled “Canada OnStrike,” which satirized the 2007-2008 Writers’ Guildof America strike, inexplicably popular viral videos andthe difficulty of monetizing Internet fame. In the episode,the nation of Canada goes on strike, demanding a shareof the “Internet money” they believe is being generated by viral videos and other online content. The South ParkElementary school boys
 — 
Cartman, Stan, Kyle and But-ters
 — 
decide to create a viral video in order toaccrue enough “Internet money” to buy off the strikingCanadians. The boys create a video, “What What (InThe Butt),” (WWITB) in which Butters sings a paean toanal sex. Within the show, the video is a huge hit, butthe boys are only able to earn “theoretical dollars.”This video is a parody of a real world viral video ofthe same name, featuring an adult male singing anddancing in tight pants. The two versions of WWITB arevery similar. The
South Park
version recreates a largeportion of the original version, using the same angles,framing, dance moves and visual elements. However, the
 
No. 11-26203
South Park
version stars Butters, a naïve nine-year old, ina variety of costumes drawing attention to his innocence:at various points he is dressed as a teddy bear, an astro-naut and a daisy.Brownmark Films, LLC (Brownmark), the copyrightholder for the original WWITB video, filed suit againstSouth Park Digital Studios (SPDS) and others for copyrightinfringement under the Copyright Act of 1976, 17 U.S.C.§§ 101
et seq
. Brownmark’s complaint referenced bothversions of WWITB, but it did not attach either work tothe complaint. SPDS responded claiming the
South Park
version was clearly fair use under § 107, attached thetwo works and moved for dismissal for failure to statea claim under Fed. R. Civ. P. 12(b)(6). Brownmark didnot address the substance of SPDS’s fair use defense, but instead argued that the court could not consider fairuse on a 12(b)(6) motion to dismiss. The districtcourt concluded that “[o]ne only needs to take a fleetingglance at the South Park episode” to determine that itsuse of the WWITB video is meant “to lampoon the recentcraze in our society of watching video clips on the internet. . . of rather low artistic sophistication and quality”
 — 
inother words, fair use. The court granted SPDS’s motionto dismiss based on the fair use affirmative defense.Brownmark appeals, arguing that an unpleaded affirma-tive defense of fair use is an improper basis for granting amotion to dismiss under Rule 12(b)(6), and that inany event, SPDS’s WWITB video is not a fair use of theoriginal WWITB video. We hold that the district courtcould properly decide fair use on SPDS’s motion, and weaffirm the district court’s finding of fair use.

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