December 07, 2011 12:55pm PT by Eriq Gardner
Judge Slams Attorneys in 'South Park' 'What What (In the Butt)' Copyright Lawsuit (Video)
As punishment for suing Viacom, the owners of the YouTube viral video What What (In The Butt) have been ordered to pay up the you-know-what.
In November 2010, Brownmark Films filed a copyright infringement lawsuit against Viacom and Comedy Central over an episode of South Park that allegedly infringed the massively popular music video. In July, a federal judge dismissed the case, finding that South Park characters recreating the super-silly clip was clearly fair use. Now, the judge has also ordered Brownmark to pay Viacom more than $30,000 in attorney fees for making a legal action that interfered with free speech and wasn't a proper way to handle the situation.
What What (In the Butt) is a 2007 music video from a Samwell song that's so ridiculous that it got featured on VH1's Best Week Ever and has now been viewed more than 44 million times.
In 2008, South Park featured their own interpretation in the episode Canada on Strike, featuring the South Park character Butters in place of Samwell.
Brownmark sued but was soundly rejected by a Wisconsin federal judge who described the South Park version as attempting "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."
On November 30, the judge added to the public record about the What What (In The Butt) case, examining Viacom's motion for attorney fees. Judge Stadtmueller writes:
"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."
The episode of South Park was a parody, was transformative, only used enough lines to conjure up the original, and the show didn't damage the market for this silly video. "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 judge writes.
Brownmark's motivation for bringing the lawsuit is deemed to be "questionable" since it waited two years to bring the lawsuit and was warned that South Park's use was fair. The judge sees this as evidence that the plaintiff was using "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."
In order to deter others from going this same route at the cost of free speech, the judge thinks its proper to award $31,525.23.
Viacom had requested $46,775.23 but the judge takes pity because Brownmark is a "very small entity, without extensive assets." The judge also indicates he's willing to knock the fee down more if Brownmark submits documentation of its financial situation.
Of course, the award could go up too. The parties are still in court. Brownmark is appealing the decision to the 7th Circuit, where it's still pending.
One last time, the video and the South Park clip...