Brownmark Films, LLC v. Comedy Partners, No. 11-2620 (7th Cir. 2012)Annotate this Case
An episode of the animated television show, South Park, entitled “Canada On Strike,” satirized the 2007-2008 Writers’ Guild of America strike, popular viral videos, and the difficulty of monetizing Internet fame. In the episode, characters create a video that is a parody of the real world viral video, “What What (In The Butt),” Brownmark, the copyright holder for the original WWITB video, sued for copyright infringement under the Copyright Act of 1976, 17 U.S.C.101. SPDS claimed that the South Park version was fair use and attached the two works. Brownmark argued that the court could not consider fair use on a 12(b)(6) motion to dismiss. The district court dismissed. The Seventh Circuit affirmed the “well-reasoned and delightful opinion.” The court properly decided fair use on a motion; the only evidence needed to decide the issue were the original version of WWITB and the episode at issue. Under the incorporation-by-reference doctrine, reliance on the attached works did not violate Rule 12(d); if a plaintiff mentions a document in his complaint, the defendant may then submit the document to the court without converting defendant’s 12(b)(6) motion to a motion for summary judgment.