Not long ago, South Park, one of Comedy Central’s better-liked shows and one that is pretty big on spoofs, got the station and its parent company Viacom in what seemed like a bit of trouble. Some courtroom trouble, that is. And by the time the dust settled on the entire controversy, Viacom found itself not looking so noble thanks to certain positions it had previously taken on exactly what copyright infringement means in the age of You Tube.
Now, some background: In November 2010, music video producer Brownmark Films sued Comedy Central, Viacom and the producers of South Park, Matt Stone and Trey Parker, alleging copyright infringement against them and seeking a permanent injunction as well as damages. Brownmark claimed that a 2008 episode of South Park, titled Canada on Strike, improperly copied its own music video titled What What (In the Butt), a surprisingly popular viral music video that Brownmark in 2007 which starred the singer Samwell.
Incidentally, both music videos were posted on You Tube, the same company that Viacom had sued for a billion dollars in March 2007 for alleged copyright infringement. Before that lawsuit was dismissed in June 2010, Viacom had raised many eyebrows for claiming that once any video was posted on You Tube, that would automatically make You Tube guilty of copyright infringement even if You Tube didn’t know that such a video was violating somebody else’s copyright. Wrong! The court ended up telling Viacom that You Tube would only be guilty in such cases if the true copyright owner informs You Tube that the stuff running on its platform was stolen and You Tube still fails to take it down. Well, that was five short months before Brownmark sued Viacom for copyright infringement over the South Park episode in question.
But aside from the irony of Viacom the hunter now becoming the hunted, this case is a good lesson for folks who might want to know when using stuff found on You Tube could be said to cross the line into copyright infringement. A win for Brownmark here would have created a policing nightmare for You Tube as it would have had to investigate the copyright status of every video submitted to it. As the lawyers would say, You Tube would have become an insurer for every video posted on its platform. Pretty tough stuff! Fortunately for You Tube’s lovers and users alike, Brownmark’s chances of winning the fight were slim from the start and its end of the road came in July 2011 when the federal court in Wisconsin tossed the lawsuit.
But why did Brownmark lose? Well, quite simply, the court just didn’t think there was enough “copying” of one work by the other to amount to the kind of violation that would be punished by the law. And the court went out of its way to really stick it to Brownmark, relying on what’s called the “fair use doctrine” under the copyright law. To put it in layman’s terms, “fair use” occurs under copyright law when an earlier work is used by a latter work for the purpose of commentary, parody, education or some other purpose whose main goal is not to secure financial gain for the second work. Of course, when “fair use” is involved, there is no need to get the copyright owner’s permission.
In the South Park case, the court said that the episode that Brownmark was complaining about was merely a “parody” of What What (In the Butt). In a rather tough and dismissive language, the court said that the whole point of the episode in South Park was just “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.”
When a copyright case is being defended on the basis of “fair use,” one of the big factors that are weighed on the scale is the extent or degree of the “copying” involved. Needless to say, the more the second work copies from the first work, the bigger its problems become. This is because the more copying that the second work does from the first work the more it looks like the second work is reaching deeper into the wallet of the first work and grabbing its money. Here, we are dealing with notions of copying and market share. In the South Park case, the court didn’t think it was that big of a deal for South Park to have copied less than one minute out of Brownmark’s 25 minute work.
So, long story short, Brownmark lost and it was a quick defeat. But suppose the copyright claim would have been brought not by Brownmark but instead by the singer Samwell himself. What then? Well, the court didn’t have to decide that question since it looks like the folks behind South Park got the proper permission from Samwell to use the song. That saved them the trouble of having to fight on that front. Yet, given the way the court looked at the case both from the perspective of “fair use” under the Copyright Act as well as the First Amendment which protects “parody”, it looks like the result would have been the same, regardless of who’s bringing the copyright claim. The court said there was no improper “copying”, period!
Still, Viacom and Comedy Central may not be the only winners here. Brownmark also won something which may have been its main purpose all along, given the rather disparaging statement that Brownmark released against Viacom when it launched its lawsuit, plus the fact that their case was weak from the start, something they had to have known.
As it happens, the lawsuit gave Brownmark the opportunity to perhaps teach Viacom a lesson by shinning a harsh spotlight on Viacom as a company that literally speaks out of both sides of its mouth and tries to have things both ways. As the derisive narrative goes, first, Viacom attacks You Tube for letting folks post stuff on You Tube’s platform without clearance from the copyright owners. Then Viacom itself (through its subsidiary Comedy Central) dips into the same You Tube pool and lifts a video from the platform without clearance from Brownmark, the copyright owner. And then, when Viacom is confronted by Brownmark, it takes cover under the notions of “fair use” and “parody.” And it wins. How convenient!
In the end, though, there is much more at stake in this case than just whether or not Viacom is a straight shooter that plays by fair rules. The big thing here really is about allowing folks who are blessed with a creative impulse to do their stuff on You Tube and other forums and not have to worry too much about unnecessary copyright lawsuits. So, despite Viacom’s aggressive behaviors in the past, this is one lawsuit that folks who use stuff posted on You Tube or those who simply enjoy checking out stuff posted on You Tube are genuinely happy for Viacom – an old nemesis in the YouTube posting wars – to win.