What “South Park” can teach us about fair use

The 7th Circuit rules that a parody video meets the fair use test

In my last column, I discussed the general principles of fair use. In this column, I’ll talk about a specific kind of fair use—parody—and a 7th Circuit case that came down in June that perfectly illustrates how a parody can be a fair use.                                                                                       

The case is Brownmark Films, LLC v. Comedy Partners et al., F.3d (7th Cir. June 7, 2012), and it involves a dispute between the makers of a viral YouTube video entitled “What What (In the Butt)” (WWITB) and the producers of the television series “South Park.”

1. Is the work transformative? The first, and, in many ways, most important factor is whether the allegedly infringing work is transformative. That is, does it add something new with a further purpose or of a different character? That factor was easily met here. The use of WWITB in “South Park” plainly commented on and critiqued the viral video phenomenon.  As the district court noted: “The South Park episode, with its use of the WWITB video, becomes a means to comment on the ultimate value of viral YouTube clips, as the main characters discover that, while society is willing to watch absurd video clips on the internet, our society similarly assigns little monetary value to such works.”

2. Is the work within the core of copyright protection? Here, the original work, a music video, is within the core of copyright protection, but this factor carries little weight because parodies almost always copy known expressive works (or nobody would understand the parody).

Contributing Author

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Allen Grodsky

Allen Grodsky’s firm, Grodsky & Olecki, is an entertainment, intellectual property, and business litigation firm based in Santa Monica.

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