What What (In The Butt) Case Continues: Brownmark Told To Pay Viacom's Legal Fees

from the what-what-(don't-file-bogus-legal-claims) dept

Ah, the “What What (In the Butt)” case continues… you may recall that the makers of the bizarrely viral video >What What (In The Butt) sued Viacom and South Park over their parody video. Here’s the original, and then the South Park version below.



The South Park folks had actually licensed the song… but not the video. So it wasn’t the singer who was suing, but Brownmark Films, who created the video, saying that the use of the same video was infringement. The court, however, disagreed… and not only found that the video was fair use, but found that the support for fair use was so strong that it didn’t even need a trial first, which is pretty rare for fair use decisions.

Now, making matters even worse for Brownmark, the court has also awarded attorneys’ fees, meaning that Brownmark will need to pay up some hefty fees to Viacom if it isn’t able to win on appeal. The court uses this ruling to once again slam Brownmark for filing an “objectively unreasonable” case:


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. First, the Court found that South Park’s work was a “clear” parody, which one could gather quickly and easily from watching the episode. Second, South Park’s version of the video was transformative, using the series’ own characters and a different recording of the song, even if the words and images were similar. Third, even with those similarities, South Park made many changes to the form of the original and used only enough lines to conjure up the original. South Park’s use was insubstantial. And, fourth, the Court found that South Park’s version of the video would not usurp the market for Brownmark’s original. 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 satisfaction of these factors shows that the defendants’ case was very strong.

Inquiring further, the Court finds that Brownmark’s legal positions were also objectively unreasonable, and thus their position was frivolous. To this Court, there is little that could justify the plaintiff’s stated view that the South Park version was not parody. Brownmark argues that South Park’s clip could be viewed as satire, and would thus require a heightened amount of transformation to be a fair use. (See Pl.’s Resp. Atty. Fee 8-9 (citing Campbell v. Acuff-Rose Music, 510 U.S. 569, 580 (1994))). This argument fails for two reasons. Not only was South Park’s video a parody, but South Park substantially transformed its version from the original. South Park did not directly copy Brownmark’s original video and insert it into the episode;[2] rather, South Park created a video that purposefully mocked the obscure images and song of the original, all in an attempt to poke fun at the original, its viral popularity, and internet crazes as a whole. It may have been intended partially as satire, but also clearly encompassed elements of parody. And, further, given the transformative nature of the use and the lampooning Brownmark’s original received, there is ample reason to believe that South Park’s use would have greater spurred the market for the original. In the internet era, with information freely and quickly accessible, viewers interested in South Park’s version could turn to the internet to find a copy of the original. And any confusion over which version was the original could be supplied to online viewers through a statement at the video’s web page. For all of these reasons, the Court finds that Brownmark was objectively unreasonable in its position that South Park’s use was not fair.

From there, it gets even worse, saying that the “motivation” for filing the suit is in question as well, and wants to award fees to stop future suits of this nature.


Further, the Court is convinced that Brownmark’s motivation in filing this suit was questionable. Not only was Brownmark’s position unreasonable, but it also waited nearly two years to file a lawsuit, only after being repeatedly rejected with warnings that South Park’s use was copyrighted. (Docket #34, Ex. B). This demonstrates an attempt by Brownmark to use 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. Of course, when the thread finally snapped and Brownmark brought this action, the parties quickly found the “sword” to be nothing more than a flimsy replica, as the Court dismissed the case outright at its earliest stage.

Next, the Court also must note that an award of attorneys’ fees in this case will deter future actions by those similar to Brownmark; the Court is not entirely comfortable with this fact, though. The defendants in this case are sophisticated business entities with worldwide connections. Brownmark, on the other hand, is a very small company which can hardly bear the same costs as the defendants. Therefore, the Court must walk a fine line between one side of protecting the rights of defendants to parody others’ works without being dragged into the legal muck for unreasonable claims and the other side of steering away from effectively robbing smaller plaintiffs of their artistic rights in their own work. While Brownmark’s legal action was unreasonable, the Court fears that imposing financial ruination on a small company, like Brownmark, for an attempt to protect its rights might result in similarly-situated plaintiffs with stronger claims refraining from enforcement.

Despite that potential, though, the Court finds that an award of attorneys’ fees in this case would deter future action that is similar to Brownmark’s. As to the risk of keeping small plaintiffs out of court, the Court notes two things: first, that as important as those plaintiffs’ artistic rights may be, the freedom of speech is perhaps of greater concern; and, second, that plaintiffs will not be subject to these fees if they engage in meaningful settlement talks before bringing their suit, work to resolve the case without court intervention, and reasonably consider the defendants’ potential defenses.

Because the Court finds that all of the Supreme Court’s factors are met, the defendants are entitled to attorneys’ fees and costs in this case

In the end, the court takes the $46,775.23 requested in legal fees and knocks it down to $31,525.23. However, it then says it will allow Brownmark to pay significantly less, recognizing that it’s a small entity that probably can’t afford too much… but that Brownmark needs to show what it is able to pay before it determines the final amount.

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Companies: brownmark films, viacom

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Comments on “What What (In The Butt) Case Continues: Brownmark Told To Pay Viacom's Legal Fees”

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29 Comments
Anonymoussays:

Re: Re: Re: Re:

Likewise…

BTW, examining the two works this is probably one of the most clear-cut cases of fair use I have seen over the course of many years involved in copyright matters. Frankly, I am at a loss to understand how it was that counsel was unable to dissuade the plaintiffs from filing the lawsuit in the first place.

Anonymoussays:

Re: Re: Re: Re: Re: Re:

More likely ‘counsel’ were the ones pushing this forward, looking for more ‘billable hours’…..

If only there were laws against lawyers bringing these kinds of suits, at least they are getting bitch slapped with the other sides attorney fees, might make them think twice about the next ‘billable hour’ case they come up with

Cixelsidsays:

I think the most amusing aspect of this whole thing is that District Judge J.P. Stadtmueller would have had to sit through at least one showing of a video where an effeminate man repeatedly expresses his wish to be anally raped, and then through a showing of similarly themed video but this time with the cartoon character of an 8yr old boy.

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