7th Circuit: ‘South Park’ Scatological ‘What What (in the Butt)’ Humor is Fair Use

Judges know fair use and parody when they see it. Especially when it comes to South Park‘s “distinct animation style and scatological humor” as seen through the eyes of a 4th grade character.

That was the conclusion of the U.S. Court of Appeals for the Seventh Circuit Circuit today (read it below) when it affirmed a trial court judge’s July 2011 decision to dismiss a copyright infringement lawsuit over the viral “What, What (in the Butt)” internet video by the singer Samwell.

Here is why the decision is an important victory for parody, satire, and fair use on the Internet.

The unanimous decision by three appellate judges concluded that copyright case litigants can assert a ‘fair use’ defense to infringement claims on a defendant’s motion to dismiss the case without even having to answer allegations in the plaintiff’s complaint.

In theory, the decision by the appeals court should help expedite decisions in copyright cases alleging fair use defenses under Section 107 of the Copyright Act. The amount of time, expense, and energy spent litigants and the court would spend in discovery and trial preparation could free up a court’s docket to hear other cases. Of course, such an early resolution of a fair use claim could also save copyright litigants considerable time and money preparing for a trial.

You can read the Seventh Circuit’s decision here:
Opinion Brownmark Films, LLC v. Compedy Partners, et al.

You can also read the U.S. District Court decision here:
Order Brownmark Films, LLC v. Compedy Partners, et al.

Then you can watch the YouTube parody by South Park, and Samwell’s original viral video (it currently has more than 45 million views!), and decide for yourself.

Here is the South Park “What What (In The Butt)” parody:

Compare South Park’s version to the original YouTube video by Samwell