Wisconsin, state of my birth, I salute you for turning out federal judges like J.P. Stadtmueller. Stadtmueller is the man who waded into the swampland of fair use, South Park, and "What What (In the Butt)" to deliver a July 6 order that may break new judicial territory by citing South Park episode "Osama bin Laden Has Farty Pants" in its footnotes. And Stadtmueller has the proper feel for the absurd needed in any judge about to rule on a case involving the phrase, "You want to do it in my butt, in my butt?" His order opens:

Federal lawsuits seldom touch on such riveting subjects and regard so many colorful parties as the present matter. The plaintiff, Brownmark Films, LLC, is the purported co-owner of a copyright in a music video entitled "What What (In the Butt)" ("WWITB"), a nearly four minute ditty regarding the derrière of the singer of the underlying work. The music video begins with an array of bizarre imagery—from a burning cross to a floating pink zeppelin—and only gets stranger from there. The heart of the video features an adult African American male ensconced in a bright red, half-buttoned, silk shirt, dancing, grinning creepily at the camera, and repeatedly singing the same cryptic phrases: "I said, what what, in the butt" and "you want to do it in my butt, in my butt."

We're not sure these lyrics are all that "cryptic," but the case did turn out to have interesting implications for fair use law. Orders like Stadtmueller's should make it easier for defendants to win copyright cases on fair use grounds without slogging their way through a multimillion dollar process of discovery and litigation—and that should let people assert fair use claims more often.

Brownmark give South Park a black mark

Brownmark, a two-person Wisconsin company, put together the "What What (In the Butt)" music video in 2007 featuring a singer named Samwell. The result was frankly bizarre, though when uploaded to YouTube, the video became a viral hit (it currently has more than 42 million views).

The TV show South Park then parodied the video for a 2008 episode called "Canada on Strike." The Butters character records a video of his own—which recreates the "What What" video in South Park style and uses the same lyrics—and uploads it to the Internet in hopes of making money.

After the episode aired, the guys behind Brownmark said they were flattered by it and that "some doors have become slightly more open because of the video's exposure and popularity... It's given us a little bit of street cred, in a weird way." The pair noted that South Park had paid them nothing, but this didn't seem to bother them; indeed, they even sent the show's creators a thank-you e-mail.

Then, in 2010, Brownmark sued. The company gave an interview to The Onion's A.V. Club in which they explained their changed stance.

"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," they said. "We never heard anything As soon as we found out that [singer] Samwell and the record company were getting paid (months after the episode aired) was when we started to look into legal matters."

It didn't escape their notice that South Park aired on Comedy Central, which was owned by Viacom, the massive media conglomerate which was suing YouTube for $1 billion dollars over... displaying Viacom content without payment. "It is unreasonable for those same corporations to treat the Internet as a bottomless well from which it [sic] can endlessly draw content without permission, payment, or even acknowledgment of the original artists," said Brownmark in a press release (PDF) announcing the litigation. "Brownmark Films is taking a stand against these corporations' continued reliance on double-standards, a decision made all the more difficult by Brownmark Films' respect for South Park and its brand of humor."

South Park had licensed the music and lyrics, but had paid nothing to the guys who created the video, even though that video was clearly the basis for the one in the episode. Was this copyright infringement? Brownmark said yes; South Park claimed that it was a fair use parody of the whole viral video phenomenon.

Someone has to do it



"For as remarkable and fascinating the parties and issues surrounding this litigation are, this order, which will resolve a pending motion to dismiss, will be, by comparison, frankly quite dry," wrote Stadtmueller, who then broke into the cliche closet. "Nonetheless, while the court has a 'tough job,' 'someone has to do it,' and, 'with shoulder to the wheel,' this court 'forge[s] on' to resolve the pending motion."

South Park moved to dismiss the case after each side had merely pleaded its initial case to the judge—no discovery had yet occurred and the case was at an extremely early stage. A summary judgment on fair use at this point is, as Stadtmueller conceded, "irregular," but it was possible. Stadtmueller decided that the case was "rather obvious" and that "this dispute simply does not warrant 'putting the defendant[s] through the expense of discovery.'"

In his order, Stadtmueller agreed that the South Park episode was parodic and that it had not used more of the video than was necessary to make its point. (And if the whole "federal judgeship" doesn't work out, it looks like Stadtmueller has a career ahead of him as a cultural studies professor.)

The defendants used parts of the WWITB video 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 South Park episode "transforms" the original piece by doing 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. The episode then showcases the inanity of the "viral video" craze, by having the South Park fourth graders' version of the WWITB video "go viral," seemingly the natural consequence of merely posting a video on the internet. More broadly, the South Park episode, with its use of the WWITB video, becomes a means to comment on the ultimate value of viral YouTube clips, as the main characters discover that while society is willing to watch absurd video clips on the internet, our society simultaneous assigns little monetary value to such works.

Less afraid of fair use?



The result was widely reported back in July, with reports largely focused on the parody aspect of the ruling. But the quick fair use win was itself interesting, as recently pointed out by Duke University's Scholarly Communications Officer, Kevin Smith. Smith helps faculty navigate the murky waters of intellectual property, licensing, and copyright. In a blog post, he noted the impact that cases like this could have on the very nature of fair use litigation.

What is significant here is that the judge made the fair use decision before there had been a trial. He examined the pleadings and found that everything he needed to make this easy call was already before him. Then he ruled favorably on a motion to dismiss the case on the basis of those pleadings (technically a “motion to dismiss for failure to state a claim”) and dismissed the case with prejudice (which means plaintiff cannot re-file it). Librarians and other academics are often afraid to rely on fair use, even when their arguments would be strong, because of the expense of defending a lawsuit even when you win. Content companies often encourage that fear, reminding academics that fair use is a defense that can only be decided with certainty at a trial. While this case is a little bit unusual, it invites us, I think, to look at this “chilling effect” and perhaps lend it less credence.

Fair use is of limited benefit if simply asserting it requires millions of dollars in legal fees; with judges like Stadtmueller willing to decide clear cases early on, defendants might not be so quick to settle if they believe they are in the right.

On the other hand, the case was so easy to decide because Brownmark mounted a fairly pitiful offensive. Even after amending its complaint, Brownmark never broadened its infringement claims and never addressed the fair use issues that South Park asserted in its defense. Stadtmueller's last lines are especially tough on Brownmark:

Twice the plaintiff has filed a complaint in this court based on the use of the copyrighted work in an episode of South Park Despite these opportunities to resolve rather glaring problems with the substance of the underlying dispute, the plaintiff has looked elsewhere and instead filed briefs that wholly ignored the central issue of this litigation, fair use. Such behavior is indicative of the efficacy of this litigation, which rightfully ends now.

Brownmark's two young backers admitted in their A.V. Club interview that "We had never licensed a video out before and had no idea how that stuff worked." The judge's firm dismissal of their lawsuit suggests they also have a limited conception of how fair use litigation works. While it can't feel great to watch other people profit while receiving no cash yourself, Brownmark's efforts are a reminder that it's important to know your business—and to get good advice in those areas you don't understand.