July 13, 2011 3:07pm PT by Eriq Gardner
'South Park' Wins Lawsuit Over 'What What (In the Butt)' Parody (Exclusive)
Viacom and Comedy Central have been let off the hook over an episode of South Park that allegedly ripped off a copyrighted music video for the viral phenomenon What What (In the Butt).
In November, Brownmark Films sued over a 2008 South Park episode entitled Canada on Strike in which the character Butters re-created an Internet video sensation from the singer Samwell.
Samwell's super silly video for What What (In the Butt) was downloaded more than 41 million times on YouTube and featured on PerezHilton and VH1's Best Week Ever.
Brownmark claimed the re-creation of its music video constituted copyright infringement.
In response, Viacom said it was a parody and fell squarely within "fair use" exceptions to copyright.
A Wisconsin federal judge agrees, making the rare step to affirm "fair use" at the summary judgment phase.
According to the judge, anyone who views the South Park episode in question will realize 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 applied the four factor test of "fair use" and determined that a clip that lasts less than a minute in a 25-minute episode wasn't terribly substantial and wouldn't ruin Brownmark's market enjoyment of its video.
Moreover, South Park made transformative use of What What (In the Butt), in the judge's opinion, 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.”
So there you have it: A judicial decree that the following South Park clip has something interesting to say about viral video craziness. Thanks to fair use, Viacom can sometimes steal from YouTube even though it is suing YouTube for copyright infringement.
Here's the two videos in question. Judge for yourself: