Compare that video with the South Park parody video, below.
South Park displayed that clip in one of its episodes which aired in 2008. Late last year, Brownmark Films, which produced the original non-parody video, sued Viacom and Comedy Central for airing the clip. The suit contended that the airing of the parody amounted to copyright infringement.
Parodies typically are protected from claims of copyright infringement under the fair use doctrine. Fair use permits people to use copyrighted material without the owner’s consent if it is used in a reasonable manner for certain purposes. The first prong of the doctrine looks at the purpose and character of the use. Many courts have held that using a copyrighted work for parody or satire is permissible under the scope of this prong.
In parodies, the commercial nature of the work does not make it presumed to be an illegal use. Thus, even though South Park is a television show produced for commercial gain and aired by Comedy Central for commercial gain, does not mean that it is not a fair use, since parodies have this special protection in copyright law.
Parodies can easily claim that they have transformative value. Parodies must mimic an original in order to be effective and make their point understood. Oftentimes, the threshold question will be whether a parody may reasonably be perceived. The original video had millions of views before it was made into a parody by South Park. Thus, the parody was likely reasonably perceived.
Recently, Brownmark Films’ case was thrown out in summary judgment.
The judge applied the four factor test of “fair use” and determined that a clip that lasts less than a minute in a 25-minute episode wasn’t terribly substantial and wouldn’t ruin Brownmark’s market enjoyment of its video.
Moreover, South Park made transformative use of What What (In the Butt), in the judge’s opinion, by accomplishing “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.