Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir. June 7, 2012). Plaintiff Brownmark produced a video celebrating anal sex called “What What In the Butt” performed by Samwell.
South Park produced a parody. According to the court, the parody took the “heart” of the Brownmark work. The South Park video was this: the country of Canada went on strike because it was not getting “internet dollars” from viral videos. A South Park character named Butters made a video to go viral and buy off Canada. You can watch both on YouTube.
The interesting part about this case (aside from the original that is more comic and disturbing than the parody), is that the plaintiff did not attach its work to the complaint nor did it attach the allegedly infringing work, yet a motion to dismiss was granted on the affirmative defense of fair use (parody). Defendant South Park responded to the motion to dismiss by attaching its parody and the original video to a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP). Ordinarily, a district court may not consider materials extraneous to the complaint without converting the motion to a motion for summary judgment under FRCP 56. See FRCP 12(d). Under the “incorporation by reference” doctrine, the district court might be free to look at the videos because the complaint had incorporated the videos by reference. Since the parties declined to brief the issue, the court saved it for another day. Instead the court treated the motion as one for summary judgment, noted that Brownmark failed to request discovery and failed to provide a list of possible evidence that would support its infringement claim. On appeal, Brownmark’s broad list of discovery that it would have sought gives Brownmark “the appearance of a ‘copyright troll’” and the 7th Circuit was “confident” that the district court would have “refused to grant such expansive demands”. The 7th Circuit noted that South Park had “miscaptioned” its motion and ought to have said that it was a summary judgment motion. Since only two videos were necessary to review and grant summary judgment, Brownmark was not prejudiced by the lack of notice ordinarily afforded on a motion for summary judgment. Practice tip: this case shows a willingness of federal courts to “cut to the chase” in a case where plaintiff has not articulated early and clearly the need for additional discovery and where plaintiffs have not clearly put the infringement: the original and the allegedly infringing material before the court in its complaint.
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