## Facts

- Brownmark Films, LLC owned the copyright in the viral music video “What What (In the Butt)” (WWITB), featuring an adult man singing and dancing.
- Defendants produced an episode of *South Park* (“Canada on Strike”) that included an animated WWITB sequence performed by the character Butters.
- The disputed sequence deliberately imitated many elements of the original, including similar camera angles, framing, dance moves, and visual components.
- The *South Park* version altered the presentation by casting Butters, a naïve nine-year-old, and using costumes and staging to change the tone and meaning of the original imagery.
- Brownmark sued for copyright infringement under the Copyright Act.
- Brownmark’s complaint referenced both works but did not attach them; defendants moved to dismiss under Rule 12(b)(6), attaching the videos and asserting fair use.
- The district court viewed the works, concluded the sequence was a parody commenting on viral-video culture, and dismissed the complaint at the pleading stage.

## Issues

1. Whether the district court could consider the referenced audiovisual works under incorporation-by-reference and decide the fair use affirmative defense on a Rule 12(b)(6) motion without converting the case to summary judgment.
2. Whether the *South Park* WWITB sequence qualified as fair use under 17 U.S.C. § 107, including whether its extensive copying was justified as parody and whether it caused cognizable market harm.

## Decision

- The Seventh Circuit affirmed the Rule 12(b)(6) dismissal.
- The court held the videos were properly considered as part of the pleadings because the complaint referenced them, allowing reliance on incorporation-by-reference without conversion to summary judgment.
- The court held the challenged use was an “obvious case of fair use” because it was a transformative parody.
- The court concluded Brownmark did not plausibly show market harm; the parody did not supplant the original and could increase interest in it.

## Legal Principles

- A court may resolve an affirmative defense on a Rule 12(b)(6) motion when the complaint and materials properly treated as part of the pleadings establish the defense.
- Works explicitly referenced in a complaint may be considered under incorporation-by-reference, including audiovisual works, when they are central to the claim.
- Parody is a paradigmatic transformative use under § 107 and may justify taking recognizable elements, including substantial portions, to ensure the audience can identify the target of the commentary.
- In parody cases, the creative nature of the original often carries limited weight compared to the transformative character of the secondary work.
- The fourth fair use factor requires a plausible showing of cognizable market substitution or harm; absent such a showing, a parody that does not replace demand for the original favors fair use.

## Conclusion

The Seventh Circuit held that, because the complaint placed the relevant works before the court through incorporation by reference and the fair use question was clear from the works themselves, the infringement claim could be dismissed at the pleading stage; the *South Park* sequence was a transformative parody and an obvious fair use notwithstanding substantial copying and without a showing of market harm.


Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir. 2012)