Another lawsuit against Comedy Central’s hit show South Park could lead to a dead end. The focus of this post is to examine the fair use defense instead of the lack of similarity or likelihood that South Park was specifically referencing Exavier Wardlaw’s The Lollipop Forest.
1: What Exactly Is Going On?
On Tuesday, October 2, 2012, Exavier Wardlaw filed a complaint in the United States District Court for the Eastern District of Pennsylvania naming South Park Studios, Trey Parker, and Matt Stone as defendants. Wardlaw alleges copyright infringement by the South Park executives through the use of the “Lollipop King” character in a three-episode story arc entitled Imaginationland. The episodes aired on Comedy Central in October 2007. The complaint lists the airing of the episodes as 2009, which might have been based on re-runs instead of the initial premiere.
Wardlaw created a “dramatic work and music; or choreography” called ‘Navah and Nasim and The Lollipop Forest” in 2005 according to a behind-the-scenes YouTube video and U.S. Copyright Office filing. Wardlaw filmed the work which he then put on YouTube. The copyright in the musical/ play was officially registered on March 7, 2006. You can click here and search “PAu003048246” as the “Registration Number” to see the copyright registration. Imaginationland was registered with the U.S. Copyright office on October 31, 2007, the air date of the final episode in the story arc (See registration PA0001590750).
South Park Studios combined all three episodes to release the feature-length version of ‘Imaginationland’ in 2008 and also won an Emmy Award for Outstanding Animated Program.
2: Southern-style Fair Use
Legal cases involving South Park are perfect opportunities to learn about fair use, an often misunderstood defense to copyright. Fair use is firmly grounded in federal law under section 17 of the U.S. Copyright Act.
“… the fair use of a copyrighted work […] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Those four factors are the key to a fair use analysis. The “infringing” work is examined under each factor; however, the application and weight given to each factor varies greatly depending upon the court. There is no bright-line test to definitively determine whether a work would be protected by fair use. This leaves content creators two options: 1) get permission from the original copyright owner; or 2) take their chances that their use of an already copyrighted work will be seen as fair use. Content owners are reluctant to give, with most flat out refusing, permission for obscene parodies such as South Park.
It would appear that Wardlaw falls into the category of desiring the highest level of protection for his work and preserving the “wholesome, family show” as he states in his initial filing. Without the fair use defense, content creators like South Park are left unable to create parody or commentary pieces referencing cultural works.
3: The Early Days of Fair Use
I recently had the opportunity to attend a Nashville Bar Association luncheon where Mr. Alan Turk spoke. Mr. Turk was counsel for 2 Live Crew during the famous Campbell v. Acuff-Rose Music, Inc. case. It was incredible to hear his story of representing 2 Live Crew in their use of Roy Orbison’s “Oh, Pretty Woman.” An interesting fact Mr. Turk shared was that artists such as “Weird Al” Yankovic were submitting amicus briefs in support of Acuff Rose! Why would he be on the side of Acuff Rose? Come to find out, “Weird Al” always gets permission to record parody versions of another artist’s songs, such as the Michael Jackson parody “Eat It.”
Campbell v. Acuff-Rose Music, Inc. is significant because it established the defense of fair use in commercial parodies. However, as Stan Lee says, “With great power there must also come great responsibility.” The Supreme Court provided a limit in that the amount that is being taken from the original work can only be enough to identify the correlation between the original work and the parody. For instance, in Campbell the U.S. Supreme Court held that 2 Live Crew’s use of the opening bass riff was necessary to “readily conjure up the song for parody, and it is the heart at which parody takes aim.” You can listen to the original version of “Oh, Pretty Woman” here and 2 Live Crew’s “Pretty Woman” here.
4: What This Means for Wardlaw
Unfortunately, South Park has an extensive history coming out victorious when it comes to their parodic use of pop cultural material. One of the more recent cases involved South Park recreating the viral music video “What What (in the Butt)” by Canadian singer Samwell. You can read more about the particular case over at The Hollywood Reporter’s Esquire Blog.
Wardlaw originally filed the case pro se (without an attorney). You can download a PDF of the complaint here. However, on January 15, 2013, a new amended complaint was filed adding Viacom and MTV Networks to the list of defendants. Based on information in the filing, Wardlaw has found legal representation through the Granovsky Law Office out of New York. As I stated at the beginning of this post, I am not focusing on whether there is a similarity between Wardlaw’s character and South Park‘s character.
I challenge you to use the links below so you can be the judge! What do you think the outcome will be?
5: Still Want More?
You can watch all three episodes of the “Imaginationland” story arc at the Comedy Central website. (Caution: The episodes are vulgar and sure to offend those who haven’t seen South Park) Or you can view the episode featuring The Lollipop King by skipping 15 min 45 sec into the second episode of the three-part series. If you watch all three episodes, keep an eye out for references to cartoon characters such as: The Care Bears, Snarf from Thundercats, Mighty Mouse, Flash, Gremlins, Cylons from Battlestar Galactica, Alien, Predator, Luke Skywalker, Darth Maul and Storm Troopers from Star Wars, Jason from Friday the 13th, Freddy Kreuger from A Nightmare on Elm Street, Strawberry Shortcake, Aslan from The Chronicles of Narnia, Morpheus from The Matrix, Wonder Woman, and countless more.
You can watch the YouTube version of Wardlaw’s Lollipop Forrest. It consists of: Part I, Part II, and Part III. I was unable to locate an online source that was selling or offered more information on the actual book that was copyrighted.