"The two versions of ['What What (In The Butt)'] are very similar.... However the South Park version stars Butters..."

"... a naïve nine-year old, in a variety of costumes drawing attention to his innocence: at various points he is dressed as a teddy bear, an astronaut and a daisy."

An excellent discussion of the elements of "fair use" in copyright, from the 7th Circuit, in a case called Brownmark Films v. Comedy Partners (PDF). Via Above The Law.

You can watch the original "paean to anal sex" — "featuring an adult male singing and dancing in tight pants" — here. And the South Park parody — using "a large portion of the original version, using the same angles, framing, dance moves and visual elements" — is here. From the opinion:

The Copyright Act of 1976 sets forth four, non-exclusive factors that a court must consider in determining whether a particular use of a copyrighted work is a fair use: “(1) the purpose and character of the use . . . ; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107 (2006). We consider each factor in turn, ultimately agreeing with the district court’s analysis and findings.

Central to determining the purpose and character of a work is whether the new work merely supersedes the original work, or instead adds something new with a further purpose or of a different character....

Regarding the third factor, SPDS’s use of the original WWITB was not insubstantial. Certainly, SPDS used the “heart” of the work; the work’s overall design and distinctive visual elements.... Parody therefore “presents a difficult case.” Id. Indeed, it may even seem as an anomaly under fair use that parody, a favored use, must use a substantial amount of qualitative and quantitative elements to create the intended allusion; there are few alternatives. But when parody achieves its intended aim, the amount taken becomes reasonable when the parody does not serve as a market substitute for the work....

It follows from the third factor that SPDS’s parody cannot have an actionable effect on the potential market for or value of the original WWITB video under the fourth factor. As the South Park episode aptly points out, there is no “Internet money” for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had. It seems to this court that SPDS’s likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. Id. at 592. And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicating that the South Park parody has cut into any real market (with real, non-Internet dollars) for derivative uses of the original WWITB video.

I'm not a copyright expert, but I think that's well analyzed. It's good to see parody getting room to breathe, and I think the original artist is better off after having this boost from South Park. His litigiousness makes him less likeable. I can see why he wants his cash, but I don't like copyright litigation as the way to monetize your YouTube videos.

The case also has some great material for civil procedure fans. The court says South Park should have "captioned" its motion as a motion for summary judgment rather than a motion to dismiss. The court notes the arguments about the fact that Butters is naïve and the lack of evidence on that score. The court says the Butters' naïveté isn't crucial to its analysis, but it nevertheless crafts a footnote pointing us to other South Park episodes establishing the naïveté of Butters:

See, e.g., Butters’ Very Own Episode (Comedy Central television broadcast Dec. 12, 2001) (perceiving sex as wrestling), see also Cartman Sucks (Comedy Central television broadcast Mar. 14, 2007); Stupid Spoiled Whore Video Playset (Comedy Central television broadcast Dec. 1, 2004). Indeed, in one of these episodes, Butters is dressed in the same teddy bear costume he wears in the WWITB video. Stupid Spoiled Whore Video Playset (Comedy Central television broadcast Dec. 1, 2004).