Brownmark Films, LLC v. Comedy Partners
682 F.3d 687
| 7th Cir. | 2012Background
- Brownmark filed suit against SPDS for copyright infringement over South Park’sWWITB parody; complaint referenced both WWITB versions but attached neither.
- South Park episode Canada On Strike satirizes viral videos and includes a parody WWITB featuring Butters; Brownmark alleges infringement of the original WWITB.
- SPDS moved to dismiss under Rule 12(b)(6), arguing South Park’s WWITB was fair use under §107 and attached the works.
- District court dismissed, reasoning the South Park episode was a fair-use parody based on the two works and allegations.
- Brownmark argued 12(b)(6) cannot resort to fair use; court noted potential for summary judgment and treated motion as such.
- Court discussed incorporation-by-reference doctrine for audiovisual works but reserved ruling on its applicability; ultimately affirmed fair use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can fair use be decided on a 12(b)(6) motion? | Brownmark says unfair to decide fair use at 12(b)(6) without discovery. | SPDS contends incorporation-by-reference allows fair-use defense at this stage. | Yes; treated as summary judgment and decided fair use on record. |
| Does incorporation-by-reference apply to audiovisual works like TV episodes? | Brownmark argues doctrine may not extend to TV programs. | SPDS advocates extending the doctrine to audio-visual works. | Court reserved decision on applicability; indicated potential extension could be appropriate. |
| Is SPDS's use of WWITB a fair parody under §107? | Brownmark contends no fair-use parody; insufficient transformative use. | SPDS argues parody with transformative value and critique of viral videos. | Yes; the South Park episode is a transformative parody and fair use. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (heightened pleading standards)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading standard; plausibility)
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (U.S. 1994) (parody may be fair use; transformative value)
- Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539 (U.S. 1985) (copyright protection; nature of use in parody)
- Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244 (7th Cir. 1994) (documents attached to motion considered on 12(b)(6))
- Tierney v. Vahle, 304 F.3d 734 (7th Cir. 2002) (incorporation-by-reference doctrine)
- United States v. Lewis, 411 F.3d 838 (7th Cir. 2005) (affirmative defenses on Rule 12(b)(6) context)
- Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009) (dismissing based on statute of limitations with unambiguous dates)