How South Park Saved Fair Use

“I hope that the law students today are having to watch Butters sing ‘What, What (in the Butt)’ in their classrooms. I hope that’s the legacy in this case,” says Parker Higgins, director of copyright activism at the Electronic Frontier Foundation (EFF). 

For 19 seasons South Park has provided cutting cultural commentary centered around the foul-mouthed adventures of fourth graders Stan, Kyle, Kenny and Cartman. 

And while it’s a cartoon for adults, the raunchy animated show has helped establish an important legal entertainment precedent that expands free speech rights. 

“When anybody creates anything basically that thing automatically gets copyrighted and for the most part it can’t be used in certain ways without permission,” states Higgins. “But there are some really important exceptions to that rule and there are some really important places where we say actually members of the public no matter who they are can use this thing for all sorts of reasons without getting permission.”

In 2010, EFF became unlikely allies with media giant Viacom—the owner of South Park—who was sued by Brownmark Films after a 2008 episode called “Canada on Strike” parodied a popular viral video by musician Samwell.

The case eventually made its way to the Seventh Circuit Court of Appeals where the judges ruled in favor of South Park and Viacom. The ruling has become an important one in entertainment law because it says that a fair use lawsuit can be stopped before going to trial—which can help content creators avoid the huge costs of litigation brought on by frivolous copyright lawsuits. 

Eriq Gardner at the Hollywood Reporter notes that the ‘What, What (in the Butt)’ case has been the most cited in courtrooms across the country in the last five years thanks to the growth of digital content. 

“Under the Supreme Court this is the highest precedent that you can have—that this Butters video is fair use,” Higgins says. “The thing that’s a little less fun is the fact it can stop lawsuits early. Anything that takes any of those threats off the table—especially at the circuit level—is going to be important for the legal system and for the rights of creators.”

Approximately 4 minutes. 

Produced by Alexis Garcia. Camera by Alex Manning. Music by Gunnar Olsen and Audionautix. 

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