Comic Riffs speaks not at all as a legal eagle and entirely as an occasional fine-feathered parodist when we say: How in the name of Butters does Brownmark Films -- aka the makers of 2007's wildly viral video "What What (in the Butt)" -- think it has a legal leg to stand on (let alone another body part)?
The Hollywood Reporter broke the news Monday that Brownmark Films is suing "South Park," Comedy Central and parent Viacom, claiming that the animated show committed copyright infringement when it spoofed the "What What" video in a 2008 episode. The suit, filed Friday in U.S. District Court in Wisconsin, alleges the infringement is "willful, intentional, and purposeful, in disregard of and indifferent to the rights of Brownmark," which seeks permanent injunction and maximum statutory damages, the trade paper reports.
To which we immediately reply: What what? But ... is this not parody?
Comedy Central, in fact, responded with this statement, which it gave to Comic Riffs and other media outlets:
"Courts have consistently recognized that parody enjoys broad protections under the First Amendment and the Copyright Act. We believe 'South Park's' parody of the 'What What (In the Butt)' viral music video that appeared in the 2008 episode of 'South Park' entitled 'Canada on Strike,' is fully protected against any copyright infringement claims under the fair-use doctrine and the First Amendment and we plan to vigorously defend those rights."
The First Amendment, of course, has long protected a wide swath of parodists -- from political cartoonists to playwrights to even pornographers (See: Hustler Magazine v. Falwell, 1988). Yet what could actually make this case more compelling than most such suits -- again, speaking strictly from a cartoonist's perspective -- is if the courts try to delve with any depth into defining and interpreting "parody."
"I know it when I see it." Those were Supreme Court Justice Potter Stewart's immortalized words, naturally, in a 1964 First Amendment case (Nico Jacobellis v. Ohio), over whether a French film was obscene and pornographic. It's intriguing to wonder whether a Justice Stewart might say the same about parody. Because this "South Park" case has an interesting wrinkle:
In their 2008 spoof, "South Park" creators Matt Stone and Trey Parker put the well-known tune to animation, as their character Butters stands in for the performer "Samwell" (aka Sam Norman). The lyrics themselves, however, aren't altered in spooflike fashion (a la, say, "Weird Al" Yankovic), so the parody becomes almost entirely a visual one. Which raises the question: Should animators have free rein to replicate any song in full -- note for note, verse for verse -- and profit freely simply because the tune is set to a 'toon?
It's worth noting, too: Cartoons enjoy such gloriously wide protection in this country, the ramifications would ripple but powerfully if "South Park" were to lose any facet of this case. (The original "What What (in the Butt)" video, which has been viewed nearly 34-million times, has been widely parodied across the Interwebs, though commonly not for commercial purposes.)
For both "South Park" and Viacom, this is just the latest case in which use of YouTube content rears its digital head.
Last month, the "South Park" creators admitted that in creating an "Inception" parody, they were overly influenced by a CollegeHumor.com video. Stone and Parker said they thought they were parodying a video using the hit film's actual dialogue -- when in effect, their "parody" largely plundered someone else's parody. The College Humor video's creators proved forgiving.
(Of that incident, Comic Riffs wrote at the time: The repentant "South Park" creators surely are smart enough also to know they're now on a kind of pop-culture probation; were a second ripoff to occur, inadvertent or no, viewers wouldn't be so forgiving.)
In June, interestingly, Viacom lost a major case to YouTube involving copyright infringement going in the other creative direction, if you will. Viacom executive Michael Fricklas wrote in a statement at the time:
Copyright protection is essential to the survival of creative industries. It is and should be illegal for companies to build their businesses with creative material they have stolen from others. ... Copyright protection is also critical to the web - because consumers love professional content and because legitimate websites shouldn't have to compete with pirates."
(Last month, Viacom amended part of its statement to read: "We are confident that we will win our lawsuit on appeal.")
Fricklas also wrote: "This case has always been about whether intentional theft of copyrighted works is permitted under existing law."
On a daily basis, hordes of cartoonists and other humorists are deeply thankful that the parodying of copyrighted works is also permitted under existing law. Let's hope this latest "South Park" case does nothing to erode the power of protected parody.
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