What What (In The Butt) Case Continues: Brownmark Told To Pay Viacom's Legal Fees

from the what-what-(don't-file-bogus-legal-claims) dept

Ah, the "What What (In the Butt)" case continues... you may recall that the makers of the bizarrely viral video >What What (In The Butt) sued Viacom and South Park over their parody video. Here's the original, and then the South Park version below.

The South Park folks had actually licensed the song... but not the video. So it wasn't the singer who was suing, but Brownmark Films, who created the video, saying that the use of the same video was infringement. The court, however, disagreed... and not only found that the video was fair use, but found that the support for fair use was so strong that it didn't even need a trial first, which is pretty rare for fair use decisions.

Now, making matters even worse for Brownmark, the court has also awarded attorneys' fees, meaning that Brownmark will need to pay up some hefty fees to Viacom if it isn't able to win on appeal. The court uses this ruling to once again slam Brownmark for filing an "objectively unreasonable" case:

To begin, the defendants' fair-use argument was very strong, and Brownmark's legal position was objectively unreasonable. The Court took the somewhat rare step of deciding this case at the motion to dismiss stage, precisely because the defendants' fair-use defense was so strong, satisfying all four fair-use factors. First, the Court found that South Park's work was a "clear" parody, which one could gather quickly and easily from watching the episode. Second, South Park's version of the video was transformative, using the series' own characters and a different recording of the song, even if the words and images were similar. Third, even with those similarities, South Park made many changes to the form of the original and used only enough lines to conjure up the original. South Park's use was insubstantial. And, fourth, the Court found that South Park's version of the video would not usurp the market for Brownmark's original. In fact, in this respect, it is most likely that South Park's use would have spurred demand for the original, making the viral video's spread more rapid after its exposure to a national television audience. The satisfaction of these factors shows that the defendants' case was very strong.

Inquiring further, the Court finds that Brownmark's legal positions were also objectively unreasonable, and thus their position was frivolous. To this Court, there is little that could justify the plaintiff's stated view that the South Park version was not parody. Brownmark argues that South Park's clip could be viewed as satire, and would thus require a heightened amount of transformation to be a fair use. (See Pl.'s Resp. Atty. Fee 8-9 (citing Campbell v. Acuff-Rose Music, 510 U.S. 569, 580 (1994))). This argument fails for two reasons. Not only was South Park's video a parody, but South Park substantially transformed its version from the original. South Park did not directly copy Brownmark's original video and insert it into the episode;[2] rather, South Park created a video that purposefully mocked the obscure images and song of the original, all in an attempt to poke fun at the original, its viral popularity, and internet crazes as a whole. It may have been intended partially as satire, but also clearly encompassed elements of parody. And, further, given the transformative nature of the use and the lampooning Brownmark's original received, there is ample reason to believe that South Park's use would have greater spurred the market for the original. In the internet era, with information freely and quickly accessible, viewers interested in South Park's version could turn to the internet to find a copy of the original. And any confusion over which version was the original could be supplied to online viewers through a statement at the video's web page. For all of these reasons, the Court finds that Brownmark was objectively unreasonable in its position that South Park's use was not fair.

From there, it gets even worse, saying that the "motivation" for filing the suit is in question as well, and wants to award fees to stop future suits of this nature.

Further, the Court is convinced that Brownmark's motivation in filing this suit was questionable. Not only was Brownmark's position unreasonable, but it also waited nearly two years to file a lawsuit, only after being repeatedly rejected with warnings that South Park's use was copyrighted. (Docket #34, Ex. B). This demonstrates an attempt by Brownmark to use the threat of litigation against the defendants as a sort of "sword of Damocles"—hanging by a thread over the heads of the defendants while Brownmark attempted to extract a licensing fee. Of course, when the thread finally snapped and Brownmark brought this action, the parties quickly found the "sword" to be nothing more than a flimsy replica, as the Court dismissed the case outright at its earliest stage.

Next, the Court also must note that an award of attorneys' fees in this case will deter future actions by those similar to Brownmark; the Court is not entirely comfortable with this fact, though. The defendants in this case are sophisticated business entities with worldwide connections. Brownmark, on the other hand, is a very small company which can hardly bear the same costs as the defendants. Therefore, the Court must walk a fine line between one side of protecting the rights of defendants to parody others' works without being dragged into the legal muck for unreasonable claims and the other side of steering away from effectively robbing smaller plaintiffs of their artistic rights in their own work. While Brownmark's legal action was unreasonable, the Court fears that imposing financial ruination on a small company, like Brownmark, for an attempt to protect its rights might result in similarly-situated plaintiffs with stronger claims refraining from enforcement.

Despite that potential, though, the Court finds that an award of attorneys' fees in this case would deter future action that is similar to Brownmark's. As to the risk of keeping small plaintiffs out of court, the Court notes two things: first, that as important as those plaintiffs' artistic rights may be, the freedom of speech is perhaps of greater concern; and, second, that plaintiffs will not be subject to these fees if they engage in meaningful settlement talks before bringing their suit, work to resolve the case without court intervention, and reasonably consider the defendants' potential defenses.

Because the Court finds that all of the Supreme Court's factors are met, the defendants are entitled to attorneys' fees and costs in this case

In the end, the court takes the $46,775.23 requested in legal fees and knocks it down to $31,525.23. However, it then says it will allow Brownmark to pay significantly less, recognizing that it's a small entity that probably can't afford too much... but that Brownmark needs to show what it is able to pay before it determines the final amount.

Filed Under: attorneys fees, copyright, fair use, parody, south park, what what
Companies: brownmark films, viacom

South Park, Viacom Sued Over Parody Video... Videomakers Point To YouTube Lawsuit In Defense

from the yeah,-that's-not-going-to-work dept

Justin Loban was the first of a whole bunch of you to send in the news of video producers Brownmark Films suing South Park, Viacom, Paramount and others over a parody video shown in South Park. The original (quite viral) video was the "What What (In The Butt)" video: This was, of course, a huge viral sensation a few years ago. It currently has over 34 million views. South Park parodied it all the way back in April of 2008, with the following:

Now, there are a few oddities about the whole thing. First, it's not clear why they waited over two and a half years to sue. That's got to work against them. Also, apparently, Viacom did license the song. The singer/songwriter (if you can call it that), Samwell, is not a part of the lawsuit. Brownmark were just the folks who made the video, and they're saying that their copyright was infringed also. In fact, if you watch the original video, you'll see that they've even added a popup telling people that Samwell isn't suing South Park, and in the description they state:

SAMWELL IS NOT SUING SOUTH PARK.
Brownmark Films is NOT Samwell. It is a music video production company.
Samwell is not involved, so please try to be nicer to him!

The whole "please try to be nicer to him" thing is kind of strange, and suggests that Brownmark knows what a ridiculous lawsuit this is. Separately, Viacom has responded by pointing out that parody is protected and is not copyright infringement. Obviously, the whole thing seems a little silly, and feels partly like it might be a publicity stunt by the two guys at Brownmark.

However, there is one other interesting note. In the press release announcing the lawsuit, Brownmark points out that there's a certain irony in the fact that Viacom was "copying" content from YouTube at the same time it was suing YouTube for posting copies of Viacom content:

In a time when corporations like Viacom are actively pursuing billion dollar judgements against video distribution sites such as YouTube, it is unreasonable for those same corporations to treat the Internet as a bottomless well from which it can endlessly draw content without permission, payment, or even acknowledgment of the original artists. Brownmark Films is taking a stand against these corporations’ continued reliance on double-standards, a decision made all the more difficult by Brownmark Films' respect for South Park and its brand of humor.

All that said, this lawsuit seems like it will go nowhere extremely fast. The video is clearly a parody video, and I can't see how the videomakers have any chance of convincing a court otherwise.

Filed Under: infringement, parody, samwell, south park, video, viral video, youtube
Companies: brownmark films, viacom, youtube