The makers of South Park fear no lawsuit. At the end of their controversial “Trapped in the Closet” episode derided Scientology and exposed a number of church “secrets,” the main characters scream “well fine! Go ahead and sue me!…I’m not scared of you! Sue me!”
The Church of Scientology is known to be litigious group, but they never came after South Park formally. Instead, Tom Cruise used his leverage with Comedy Central’s parent company, Viacom, to keep the episode from re-airing.
Of course, as soon as Cruise was no longer promoting Paramount Picture’s (owned by Viacom) Mission Impossible: 3, the episode was replayed multiple times, and it survived on the internet at South Park Studios and in pirated form.
Having seen Tom Cruise and Scientology fail to take on South Park, the makers of the popular Youtube Video “What What (in the butt)” should have known to leave well enough alone. South Park parodied the video in an episode on internet viral videos, and Brownmark, the company behind the original, filed a suit for copyright infringement.
Strangely enough, South Park actually licensed the music, but not the video, which Brownmark produced.
No matter, Brownmark won’t be seeing any money from licensing fees–quite the opposite. The court was so heavily in favor of South Park and Viacom that the suit never went to trial, and now the court has ruled that Brownmark must pay attorney fees, over $30,000, for even bringing it up.
Here are some gems from the decision:
“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.”
“South Park’s use was insubstantial.”
“…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.”
Inquiring further, the Court finds that Brownmark’s legal positions were also objectively unreasonable, and thus their position was frivolous.
“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; 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.”
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.”
Yeesh! Finally, the court did take some pity:
“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.”
In fact, the court is waiting to see how much Brownmark can afford before handing down a fine. Perhaps that generosity made the court feel better about the (justifiable) venom coursing through the decision.