Viacom and Comedy Central were sued in November over the 2008 South Park episode Canada On Strike. Brownmark Films alleged that a scene stole from its copyrighted music video for the viral phenomenon “What What (In the Butt).”
In “Canada on Strike,” the character Butters Stotch reconstructs a silly Internet video by singer Samwell.
Downloaded over 41 million times on YouTube, Samwell’s “What What” video was featured on PerezHilton and VH1’s Best Week Ever.
Re-creating the music video amounted to copyright infringement, Brownmark claimed. But Viacom responded that its own version was a parody, and thus was allowed within “fair use” exceptions to copyright.
In a rare move, the judge affirmed “fair use” at the summary judgment phase of the action.
Anyone seeing the South Park episode will know that the show was trying “to lampoon the recent craze in our society of watching video clips on the Internet that are — to be kind — of rather low artistic sophistication and quality,” the judge added.
The judge ruled that a clip lasting under a minute in a 25-minute episode was not very substantial and would not hurt the success of the original video distributed by Brownmark.
As well, the judge observed, South Park altered “What What (In the Butt)” considerably by accomplishing “the seemingly impossible — making the WWITB video even more absurd by replacing the African-American male singer with a naive and innocent nine-year-old boy dressed in adorable outfits.”