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The Hollywood Reporter is celebrating the fifth anniversary of its revamp. To mark the occasion, I was asked to come up with the most influential court decision in the past five years. How to do this? It’s akin to picking the MVP of a given baseball season. Should I evaluate influence with respect to impact on industry deal-making? If so, the $319 million verdict in the Who Wants to Be a Millionaire profits case probably qualifies. Do I go for a decision that got a lot of press and thus may be psychologically impactful to the many artists out there? Maybe the Blurred Lines jury verdict earlier this year hits the right note.
I could have gone that way, but instead, I went with a more sabermetric approach, analyzing Google Scholar and trying to figure out what decision is constantly being referred to in later cases. It doesn’t hurt that the winner involves a popular TV show and a dispute definitely of its times.
Don’t laugh, but of the many important legal decisions to hit the entertainment industry these past five years, the one that has been cited the most in courtrooms across the nation is a case involving a South Park parody of a viral video titled “What What (In the Butt).“
To understand why the 2011 opinion by the 7th U.S. Circuit Court of Appeals in Brownmark Films v. Comedy Partners has become so influential requires an appreciation of an unwritten rule in Hollywood: The more successful a film, television show or musical work is, the more likely that producers are to be sued for stealing someone else’s material. Copyright lawsuits fly in the industry like drones up in the sky, and while nearly all of these lawsuits end badly for plaintiffs, studios can rack up hundreds of thousands of dollars dealing with the nuisance.
Enter Butters, the South Park elementary school student character, who during a 2008 episode titled “Canada on Strike” — satirizing the 2007-2008 Writers Guild of America work stoppage — was shown doing his own version of Samwell’s super-silly “What What (In the Butt)” to accrue enough “Internet money” to buy off the striking Canadians.
A federal judge decided this was fair use, a transformative send-up of the viral video culture. Had the case stopped there, it would have made a good headline, but hardly a legal head-turner that would unite frequent adversaries Viacom (Comedy Central’s parent) and the Electronic Frontier Foundation and lead to a sea change in how judges deal with these types of lawsuits.
On appeal, the owner of the “What What (In the Butt)” video argued that when ruling on motions to dismiss, judges are limited in what evidence they can consider and can’t address an affirmative defense like fair use. In an opinion that would soon be adopted by other appellate courts as good law, U.S. Circuit Judge Richard Cudahy held otherwise and said that judges may incorporate evidence like the videos in question referenced in the complaint. “Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits,” wrote Cudahy. “District courts need not, and indeed ought not, allow discovery when it is clear that the case turns on facts already in evidence.”
When the decision was rendered, it wasn’t immediately clear of the impact it would soon have. In retrospect, Brownmark has become the entertainment industry’s equivalent of Aschcroft v. Iqbal, a 2009 U.S. Supreme Court opinion that rejected a Muslim man’s attempt to sue Bush administration officials for alleged abuse he suffered in detention after being detained in the aftermath of the 9/11 attacks. Neither case got too much attention in legal circles until appellate judges came back with word that lower court judges were free to address the plausibility of a claim at an early stage of a dispute.
For entertainment and media companies, now navigating through digital shores where awareness of what’s out there often breeds litigation, the development has been quite welcome. Says Alonzo Wickers, one of the winning attorneys in the Brownmark case, the ability to get a quick dismissal has made it “much more likely that networks, production companies and their insurers will give people greater freedom to rely on fair use.”
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