Fair Use Lives (Courtesy of South Park)

In July of this year, the creators of South Park prevailed in a lawsuit brought by Brownmark Films claiming South Park’s animated series infringed the copyright in the viral phenomenon “What What (In The Butt),” a music video performed by a singer known as Samwell. South Park lampooned the song in an episode in which the main characters of the program sought wealth and fame via internet celebrity by recreating the “What What” clip as performed by the character Butters. South Park argued to a federal court in Wisconsin that its lampoon was lawful fair use under section 107 of the Copyright Act. The court agreed, finding that South Park had met the “transformative use” standard “by doing the seemingly impossible—making the WWITB video even more absurd by replacing the African-American male singer with a naïve and innocent nine-year old boy dressed in adorable outfits.” The court found that appropriating the work in order to comment on the phenomenon of viral videos was within the ambit of section 107, and there was little risk that the animated spoof would usurp the market for the original. Brownmark Films could not therefore prevail on its copyright infringement claim.

On Friday, Brownmark Films filed its brief asking the U.S. Court of Appeals for the Seventh Circuit to reverse the lower court’s decision. Here’s hoping for an opinion from the Court of Appeals by Judge Posner that brings some common sense to fair use law.

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