What What (In The Butt)? What What (Fair Use Doesn't Need A Trial)?

from the well-that's-nice dept

Last year, we reported on the really bizarre lawsuit of video producers Brownmark Films suing South Park, Viacom and Paramount for parodying the bizarre hit viral video What What (In The Butt). You can see the original video below, followed by the South Park parody:

It’s worth noting that the actual song had been licensed, and the “singer” Samwell was apparently paid. The lawsuit was over the copyright on the video itself. Back in July a court ruled for summary judgment against Brownmark, noting it was a pretty easy case based on parody grounds. We had meant to cover it at the time, and the ruling is somewhat amusing, as the judge can hardly resist noting the general oddity of the video and the case — but things got busy and it slipped away.

So, thanks to Nate Anderson for pointing our attention to Duke University’s Scholarly Communications Officer, Kevin Smith’s post discussing an important point that many overlooked in covering the case: that “fair use” was determined without a trial. One of the many problems with a fair use “defense” is that it’s still considered a “defense” to a claim of copyright infringement, rather than a right on its own. That means, most courts have felt that in order to determine fair use, you first have to go through a full trial, in which infringement is proven, and then fair use is brought forth as a defense.

But, in this case, the court skipped all that and said you can determine fair use at the summary judgment stage. That’s important. As we’ve seen, even those who believe they have a strong fair use claim will often settle rather than fight, knowing that the cost of a trial is prohibitive.

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 there 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.

In his ruling to dismiss, Judge Stadtmueller explicitly notes that ?evaluating an affirmative defense, and indeed the ?fair use? defense, at the pleadings stage is ?irregular?.? But he thinks it is justified precisely because when the case for fair use is ?obvious,? ?the court can conclude that this dispute does not warrant ?putting the defendant[s] through the expense of discovery?.? In other words, in straightforward cases, a fair use claim can be evaluated before there is a trial, explicitly to prevent the cost of litigation from itself becoming an obstacle to proper exercise of fair use.

Who knows if other judges will follow this lead — and, again, this case may be seen as extreme because it’s so obviously fair use. But it would be nice if judges were willing to rule on fair use upfront, rather than go through a protracted and expensive trial.

Filed Under: copyright, discovery, fair use, parody, south park, summary judgment, what what