The recent copyright infringement suit filed by the makers of Samwell’s “What What (In The Butt)” video against Viacom, Comedy Central, and the producers of South Park—stemming from South Park’s spoof of the video in the 2008 episode “Canada On Strike”—hinges on one important question: Is it parody, or an unabashed rip-off? Comedy Central certainly thinks the former. On Tuesday, it sent a statement to The Hollywood Reporter avowing that it planned to “vigorously defend” its rights as spelled out by the fair-use doctrine and First Amendment, noting that “courts have consistently recognized that parody enjoys broad protections under the First Amendment and the Copyright Act.” So in Comedy Central’s eyes, the video is definitely a parody.
Yesterday, The A.V. Club spoke with Brownmark Films co-founder Andrew Swant via e-mail about Comedy Central’s response, and he had this to say:
“We don't think it's a clear-cut case of parody at all. Parody and satire are very different in the eyes of the law… Our video is intentionally humorous. It works by juxtaposing a sexually charged song with cartoony, ironically innocent visuals. The South Park version basically repeats our joke. Their version doesn't ‘make fun’ of ours, it just ‘does it again,’ and that's not parody.”
The group’s official press release repeats this claim, saying, “The episode satirizes the 2007-2008 Writers Guild strike and illegally appropriated Brownmark Films' video in order to do so”—and there’s where those differences between parody and satire arise, although unfortunately, they’re not always as clearly defined as Swant might suggest.
According to the Supreme Court, a parody is “is the “use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works”—in other words, it’s a “transformative” work that uses the original to make its point. As spelled out in the press release, Brownmark’s case hinges on the idea that Butters redoing “What What (In The Butt)” is not a commentary on the video itself, but rather part of a larger commentary on the writers’ strike, and that’s where it falls under the auspice of satire—and thus the Court would then require justification for the act of borrowing “What What,” since it’s not a direct commentary.
And while it would seem as though the burden would then be on Brownmark to prove that the episode wasn’t parodying “What What” specifically, the Court also raises the question of whether “a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives”—in other words, whether Butters doing “What What” usurps the Samwell version in the “market.” In that case, according to the law, the burden of proof is actually on the one claiming fair use (i.e. Comedy Central and South Park) to establish what, exactly, they were mocking.
But because this is a YouTube video we’re talking about, things get even murkier still: When it comes to silly viral videos about doing it in the butt, after all, what is the measure of success in the “market”? According to Swant, it’s that “South Park is way more widely known than our video, and the situation sucks because we get so many angry comments saying that we ’ripped off South Park.’ It's created a lot of confusion and made us look like the bad guy. It's made us look like the thieves.” Whether getting “angry comments” amounts to usurping Brownmark’s place in the “market,” however that’s defined, is something the court will have to decide—particularly since the original “What What” still ranks as one of the most-watched music videos of all time.
And another problem is that even the video’s creators seem to acknowledge South Park’s role in making their success possible. Potentially complicating matters is an interview that Swant and his video co-creator Bobby Ciraldo gave in 2008, a month after the episode aired, in which they claimed the South Park “homage” was “very flattering,” and even talked about sending a “thank you e-mail the next day.” At the time they mentioned that, while they hadn’t made any money from South Park’s appropriation, “The cool thing, though, is that some doors have become slightly more open because of the video's exposure and popularity,” and credited the video with giving them “street cred” that had helped their burgeoning business.
The A.V. Club asked Swant—who also claimed that Brownmark had sent South Park “an early cease-and-desist letter,” something not mentioned in that interview—why he had gone from being flattered and sending thank-you e-mails to deciding South Park owed them something more:
We had never licensed a video out before and had no idea how that stuff worked. When we saw the episode we thought it was great, and even tried to thank Matt & Trey, but we naively assumed that a check was in the mail, or that we'd soon be contacted about the licensing stuff, or that some sort of mistake had occurred. We never heard anything… As soon as we found out that Samwell and the record company were getting paid (months after the episode aired) was when we started to look into legal matters. The record company almost always owns the rights to the video, so we were trying to figure out if there had just been some sort of mistake with the licensing. We were initially flattered by the recreation, but we soon started to think it was sucky that South Park chose to pay just a portion of the creative team.
Will that reversal of opinion from just being grateful for the exposure to wanting more—and the appearance of a two-year delay in making it—affect the court decision the same way it has public perception of their lawsuit? Immediately upon hearing about the case, for example, many media outlets (including The A.V. Club) noted the timing of Brownmark’s lawsuit arriving right after South Park openly admitted to plagiarizing a College Humor parody of Inception, which would seem to suggest that Brownmark only decided to go after the show when it appeared most vulnerable.
However, Swants claims, “Neither one of us had heard about the South Park Inception video plagiarism fiasco until [Tuesday], so that had nothing to do with our deciding to file now. We're not money-hungry assholes, and we're definitely not riding on the coat-tails of the Inception plagiarism news.” In fact, Swant says that the delay comes only because Brownmark had spent the last couple of years “making sure this case wouldn't be a waste of our time and funds.”
In the case of the Inception parody, of course, the College Humor video’s creators (which was appropriated nearly word-for-word as part of a larger work of satire, giving them perhaps a much clearer case for copyright infringement than Brownmark’s) declined to pursue legal action after Trey Parker and Matt Stone apologized and offered to meet with them. Would Brownmark have settled for the same thing?
“I think if anyone at South Park would have called or e-mailed us back maybe none of this would have happened,” Swant says, who notes that they licensed the “What What” video to Tosh.0 for “a small amount of money.” “We might have been able to figure something out,” he continues. “Attribution would have been really nice at a bare minimum.”
Anyway, it’s obviously too late for that.
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