A recent Seventh Circuit decision, Brownmark Films v. Comedy Partners,1 breaks some interesting procedural ground by allowing a copyright defendant to assertand prevail ona fair use defense by way of a dismissal motion under Rule 12(b)(6). The decision underscores the dispositive role of comparing the works themselves, and confirms that where the court can make such a comparison it need not wait for any particular procedural juncture to resolve the fair use question. This result may be particularly helpful for defendants, such as the Comedy Central Network in Brownmark, who may avoid discovery completely where their fair use arguments are sufficiently compelling.
‘Brownmark’ Background
The plaintiff in Brownmark was a small film producer that scored an unexpected “viral” video hit on YouTube with a gay-themed dance number called “What What in the Butt” (hereafter, “WWITB”). In the video, the featured performer, professionally known as Samwell, dances on a distinctive red, white and blue stage, occasionally being shown in close-ups as he nibbles on a large chocolate heart or turns to reveal the words “What What” spelled out in sequins on the seat of his too-tight pants.
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