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Unusual Challenges to Content in Film, TV Productions
Two recent court rulings ' one involving the movie The Hangover: Part II and the other the TV series South Park ' considered unusual issues in challenged uses of content in entertainment productions. In Louis Vuitton Mallatier S.A. v. Warner Brothers Entertainment Inc., 11 Civ. 9436, the U.S. District Court for the Southern District of New York decided that Warner Brothers' inclusion of a knock-off copy of a Louis Vuitton bag in a scene in The Hangover: Part II didn't create a false designation of origin that would violate '43(a) of the federal Lanham Act. In a brief scene in the movie, Alan, one of the characters, refers to the knockoff by Diophy by saying, “Careful that is ' that is a Lewis Vuitton.”
Noting the film character's comment met the “low threshold” for an artistic relevance defense, District Judge Andrew L. Carter Jr. ruled that the remark “comes across as funny because [Alan] mispronounces the French 'Louis' like the English Lewis,' and ironic because he cannot correctly pronounce the brand name of one of his expensive possessions, adding to the image of Alan as a socially inept and comically misinformed character.”
In the other case, the U.S. Court of Appeals for the Seventh Circuit affirmed that a parody in an episode of South Park of the plaintiff's video “What What (In The Butt)” was an “obvious” copyright fair use. Brownmark Films LLC v. Comedy Partners, 11-2620. The defendants had moved for dismissal for failure of Brownmark to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Brownmark then argued that an affirmative defense like fair use couldn't be decided on such a motion.
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