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Brownmark Films v. Comedy Partners

682 F.3d 687, 102 U.S.P.Q.2d 1974 (2012)

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Brownmark Films v. Comedy Partners

United States Court of Appeals for the Seventh Circuit

682 F.3d 687, 102 U.S.P.Q.2d 1974 (2012)

Facts

Brownmark Films, LLC (plaintiff) was the copyright holder for a viral internet video entitled “What What (In The Butt)” (WWITB) featuring an adult man singing and dancing. The popular adult cartoon South Park did a parody of said video in one of its episodes. Brownmark filed a complaint against South Park Digital Studios (SPDS) and other entities (defendants), alleging that SPDS’s version of WWITB constituted copyright infringement. Brownmark did not attach the works to its complaint. SPDS responded, claiming that its version of WWITB was clearly fair use under 17 U.S.C. § 107 of the Copyright Act and moved for dismissal under Federal Rule of Civil Procedure 12(b)(6). The motion to dismiss had copies of both videos attached. The district court concluded that the SPDS version of WWITB was fair use and granted the motion to dismiss based on said affirmative defense. Brownmark appealed and argued that a 12(b)(6) motion to dismiss could not be granted based on an affirmative defense.

Rule of Law

Issue

Holding and Reasoning (Cudahy, J.)

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