• by Wendy Davis  @wendyndavis, December 5, 2011

A company that sued Comedy Central's “South Park” for copyright infringement not only lost the case, but was ordered to reimburse Comedy Central's attorneys for their work on the “frivolous” lawsuit.

In a ruling issued last week, U.S. District Court Judge Joseph P. Stadtmueller in the Eastern District of Wisconsin said that Brownmark Films must pay Comedy Central's lawyers up to $31,500. The exact amount will depend on Brownmark's financial state.

The lawsuit stemmed from a 2008 "South Park" episode that drew on the music video “What What (In the Butt),” or WWITB, created by Robert Ciraldo, Andrew Swant and Sam Norman. The creators transferred their interest in the clip to the small Wisconsin company Brownmark Films. The clip went viral on YouTube, where it has been viewed more than 44 million times.

The "South Park" episode that sparked the lawsuit featured a 9-year-old character who created a music video similar to WWITB that also went viral. After the show aired, Brownmark unsuccessfully asked Viacom's Comedy Central to pay a licensing fee. Two years later, Brownmark sued the media giant for copyright infringement.

Brownmark lost that suit this summer, when Stadtmueller ruled that the TV show made fair use of the clip. “The episode then showcases the inanity of the 'viral video' craze, by having the "South Park" fourth graders’ version of the WWITB video 'go viral,' seemingly the natural consequence of merely posting a video on the Internet,” the judge wrote. 

The show's plot -- in which "South Park" characters were unable to collect “Internet money” for the clip -- also supported the fair-use finding, Stadtmueller wrote. “The South Park episode, with its use of the WWITB video, becomes a means to comment on the ultimate value of viral YouTube clips, as the main characters discover that while society is willing to watch absurd video clips on the Internet, our society simultaneous[ly] assigns little monetary value to such works.”

After Comedy Central won, it sought $62,131.48 in attorneys' fees, arguing that the lawsuit was frivolous. Stadtmueller agreed with that characterization, although said he would reduce the amount of fees because Brownmark is a small company.

“The defendants' fair-use argument was very strong,” he wrote.

“Brownmark's legal positions were also objectively unreasonable, and thus their position was frivolous,” he added. “There is little that could justify the plaintiff's stated view that the South Park version was not parody.”