South Park parody case clarifies principle of fair use

South Park's parody of YouTube video sensation "What What (In The Butt)" from singer Samwell is a clear case of "fair use" and thus doesn't infringe on copyrights, the U.S. 7th Circuit of Appeals ruled on 7 June 2012. The fair use exemption is codified in Section 107 of the U.S. Copyright Act and allows the reproduction of copyrighted works without permission of the author for particular purposes, such as criticism and comment. As a parody can be seen as criticism or comment on the original work, it can fall under the scope of the fair use exemption.

In 2008, South Park parodied the YouTube hit "What What (In The Butt)" from singer Samwell. South Park copied the dance moves, the angles and the visual elements from the original video, but replaced the Afro-American singer with  a nine-year old South Park character. South Park licenced the music, but according to Brownmark, the producer of the original video, South Park also needed a licence for the video and sued South Park for copyright infringement.

The lower court judged that South Park's video was obviously a parody of the original video, providing comments on the absurdity of the original video, and thus a clear case of fair use. While most courts go through a full trial before they determine fair use, South Park's case was so evident to the jugdes that they made their decision without a trial. Brownmark appealed and claimed that fair use could not be determined without a full trial. However, the 7th Circuit of Appeals did not need much time to affirm the ruling of the lower court. This means an important precedent for application of the fair use doctrine.

It is not the first time that the U.S. court recognizes a parody as fair use. For example, in 1994 the U.S. Supreme Court considered that a rap version of Ray Orbinson's song "Pretty Woman" was a parody that made fair use of the original song. South Park's case, in which the trial was skipped, could be a precedent for future fair use claims. However, not all cases are as clear as South Park's, so results from the past might be no guarantee for the future.

Read more about parodies on FutureOfCopyright.com:
- Provocative cartoons of Miffy are legitimate parodies
- Movie producer takes down Hitler parodies
- Parody exception? The Swedish Chef does 'Popcorn'

Sources: Wired, Techdirt

By Marjolein van der Heide