The Seventh Circuit held recently in Brownmark Films, LLC v. Comedy Partners that, under certain circumstances, a trial court may dismiss a copyright infringement case based on a fair use defense prior to discovery.
Over the years, the satiric Comedy Central cartoon program South Park and its creators have developed a reputation for biting social commentary. Past targets include World of Warcraft players, Occupy Wall Street, and the History Channel’s recent obsession with swamp creatures and World War II. In the show’s 12th season, in an episode entitled “Canada on Strike,” South Park took on the world of viral videos. The episode included a parody of a real-world viral video called “What What (In the Butt)” (“WWITB”) (Authors’ Note: possibly NSFW). South Park’s version visually approximates the original, but plays on the naïveté of the starring nine-year-old South Park character, Butters, by using more childish elements; for example, by portraying Butters dressed up as a teddy bear and a daisy.
Brownmark, the copyright holder for the original WWITB video, filed suit for copyright infringement against South Park Digital Studios and others (“South Park Studios”). South Park Studios responded with a motion to dismiss based on an affirmative fair use defense. Although Circuit Judge Cudahy noted that courts should generally refrain from dismissing cases based on affirmative defenses, he wrote that the reason for this reticence is that defenses typically turn on facts that emerge during discovery and trial. In this case, though, the district court ruled that only two pieces of evidence were needed to decide the question of fair use: the original WWITB video and South Park Studios’ parody.
The district court granted South Park Studios’ motion and dismissed the case. The Seventh Circuit affirmed, noting that “[o]ne only needs to take a fleeting glance at the South Park episode” to determine that its use of the WWITB video is meant “to lampoon the recent craze in our society of watching video clips on the internet . . . of rather low artistic sophistication and quality.” Thus, fair use.
Other commentators support the decision, noting that the focus of the parody is not the specific viral video, but rather that the parody is a commentary on society’s consumption of such Internet videos generally. It is worth noting that such arguments have not always found favor in the courts. For example, in the well-known Cat Not in the Hat! case, a district court found—and the Ninth Circuit affirmed—that a book entitled The Cat Not in the Hat! A Parody by Dr. Juice was not shielded as fair use. The book “mimic[ked] the distinctive style” of a Dr. Seuss book, using repetitive, simple rhymes to tell the story of the O.J. Simpson double-murder trial. The general idea is that a use is not fair if, in the words of the U.S. Supreme Court in Campbell v. Acuff-Rose, the alleged infringer uses the original work solely “to get attention or to avoid the drudgery in working up something fresh.” In Brownmark, it seems, the Seventh Circuit viewed South Park’s parody as something more than mere drudgery avoidance.
Going forward, Brownmark changes little, if anything, with respect to the substance of the fair use analysis. But Brownmark does show that courts may—in at least some fair use cases and at least in the Seventh Circuit—grant a motion to dismiss prior to discovery. While Brownmark involved a seemingly easy fair use case in the defendants’ favor, it will be interesting to see whether future courts will grant motions to dismiss where the fair use analysis is less obvious. In any event, copyright infringement plaintiffs should be aware that the road to discovery where a defendant raises a fair use defense may not be quite as smooth as it used to be.