By David Muradyan

“South Park” is an animated sitcom that airs on Comedy Central, and centers on the happenings of four foul-mouthed fourth graders in a small mountain town in Colorado. As the District Court in Brownmark Films, LLC v. Comedy Partners stated, in the nearly 15 years that South Park has been on the air, “the four central characters have, amongst other adventures, battled space aliens, hunted Osama Bin Ladin in the wake of 9/11 ala Elmer Fudd and Bugs Bunny, and have, more recently, resolved the nation’s economic woes by charging the nation’s consumer debts on one of the character’s credit card.” Brownmark Films, LLC, v. Comedy Partners, 2011 U.S. Dist. LEXIS 72684 (E.D. Wis. July 6, 2011) (“Brownmark”). 

The entities involved in the production of South Park found themselves in the middle of a copyright infringement suit because of a South Park episode entitled “Canada on Strike,” which allegedly infringed on Plaintiff Brownmark Films, LLC’s (“Plaintiff” or “Brownmark”) copyright in WWITB (defined below).  In that episode, the naïve “Butters Stotch” (one of the South Park characters) is coaxed by his fellow classmates to record an internet video in the hopes of making money on the Internet. The Internet video replicates parts of the “What What (In the Butt)” (“WWITB”) video, which was a copyrighted video. The Court described the WWITB music video as “a nearly four minute ditty regarding the derriere of the singer of the underlying work.” The Court further explained: “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.’” Brownmark, the purported co-owner of a copyright in the WWITB music video, filed suit against various entities involved in the production of South Park, alleging copyright infringement. According to Brownmark, the “Canada on Strike” episode has an internet video—which lasts for 58 seconds of the approximately 25 minute episode—replicating parts of the WWITB video, with the 9 year old Butters “singing the central lines of the original video, while dressed as a teddy bear, an astronaut, and even as a daisy.” As the Court noted, “[i]n the episode, Butters’ video, much like the original WWITB video, goes ‘viral,’ with millions watching the clip. However, after their attempts to collect ‘internet money’ prove fruitless, the South Park fourth graders learn that their video, much like other inane viral YouTube clips, have very little value to those who create the work.” The defendants justified their use by claiming “fair use,” which is an affirmative defense to copyright infringement.

 Continue Reading South Park Prevails in Copyright Infringement Case Thanks to the “Fair Use” Doctrine

By Jeffrey Pietsch

The last decade has been tough for record companies. Record sales drastically fell with the advent of the internet and with the prevalence of unauthorized music downloading. Now, the record companies face a new foe in the Copyright Act of 1976 (“Copyright Act”). Under the Copyright Act, artists are able to exercise termination rights on grants made for copyrighted works which will allow artists to regain control of their work after 35 years from the date of such grant. This provision of the Copyright Act applies specifically to grants made on or after January 1, 1978. Because 2013 will be the first year an artist may exercise their termination rights, it is likely that record companies will resort to litigation to maintain their rights to such works. One example is the declaratory action filed recently by Scorpio Music and Can’t Stop Productions, Inc. against Victor Willis (aka the Cop or Naval Officer) of the Village People in an effort to prevent the exercise of termination rights for such popular songs as Y.M.C.A. and Macho Man.

Before examining the action filed against Victor Willis, it is instructive to first review and analyze the termination provision of the Copyright Act at issue. Section 203 of the Copyright Act provides for the termination of transfers and licenses granted by an author. Specifically, § 203 states: “In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination.” The following conditions must be met for the termination:

(1)      the termination must be made by an authorized person

(2)      a 35-year period exists between the grant and the termination date; and

(3)      advance notice must be provided not less than two years and no more than ten years before the termination date.Continue Reading Macho Man: Village People Singer Battles Record Companies over Copyright Termination Rights

By Scott Hervey

In what must be the wildest of luck, professional photographer David Slater was visiting a national park in Indonesia when a black macaque grabbed an errant camera and took an array of pictures and self-portraits.   These amazing pictures ran in a July 5 UK news article about the incident. Two of the four pictures featured in the article included a copyright notice indicating Caters News Agency as the owner.

Can Canters News Agency own the copyright in the photos taken by this highly intelligent and obviously photogenic monkey?   In order for this to be the case, the monkey would have to be an author under the Copyright Act.    And if a monkey can be considered an author, he or she would have to assign or transfer the copyright in the photos to Caters News Agency.

Section 201(a) of the Copyright Act provides that the initial ownership of the copyright in a work protected under the Act vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work. So who can be considered an author? According to the Copyright Office FAQ page, "[u]nder the copyright law, the creator of the original expression in a work is its author." Since the monkey was the creator of the pictures in question, is the monkey the author for the purposes of copyright ownership? According to the internal Copyright Offices practices, as codified in Rule 503.03, the monkey may not be considered the author. Rule 503.03(a) states:

 Continue Reading Copyright Ownership Claim Of Pictures Taken By Wild Ape is Monkey Business