This Week In Intellectual Property Lessons: Butters' "What What", Iron Mike's Tattoo and Ali's Catch Phrase.
What do South Park's Butters parody of "What What (In The Butt)", Mike Tyson's facial
tattoo and Muhammad Ali's catch phrase have in common? They all serve to illustrate some aspect of intellectual property law.
As you know, South Park is a cartoon featuring a group of foul mouthed kids and in which, no subject is taboo or sacred. A rapper named Samwell did a video that went viral called "What What (In The Butt)". (Warning: Not exactly safe for work) The central group of foul mouthed kids in South Park convinced Butters to do a version of that video to see if it would also go viral. It did. Samwell sued, alleging copyright infringement. The court in Brownmark Films, LLC, v. Comedy Partners, 2011 U.S. Dist. LEXIS 72684 (E.D. Wis. July 6, 2011) using a method deemed "irregular" (court's own words), considered an affirmative defense as a basis for a motion to dismiss for failure to state a cause of action. Usually, affirmative defenses are considered only after the plaintiff have proved they have a viable case. The court then found that "The South Park “take” on the WWITB video is truly transformative, in that it takes the original work and uses parts of the video to not only poke fun at the original, but also to comment on a bizarre social trend, solidifying the work as a classic parody." The court also found that that "...South Park’s parody of the WWITB video falls squarely within the fair use protections afforded by the Copyright Act." Therefore, fair use and a dismissal with prejudice.
We've all seen the offensive and extremely funny movies, Hangover and Hangov
er II. Mike Tyson, former heavy weight champion of the world and famous pigeon lover was in both. The tattoo on his face was featured prominently and in Hangover II, one of the actors ends up with an almost identical tattoo and this is shone on some of the advertisements for the movies. The tattoo design was originated by a tattoo artist in Missouri and the artist retained all rights in the design. He brought suit for damages for copyright infringement and for an injunction to stop the release of the film. In a preliminary hearing, the judge found that the artist had a likelihood of success in the trial and stated that a copyright could exist in the medium of expression here (Mike Tyson's face). The judge declined to issue an injunction against the release of the film by finding that damages would be sufficient remedy. This ruling induced the parties to settle and while the settlement is confidential it is likely that as part of the settlement, the movie company will alter the advertisements to obscure the similarities in the tattoos.
Muhammad Ali famously coined the phrase "Float like a butterfly, sting like a bee." The smart 
people advising him got a trademark on the phrase. Kobo, Inc. has been using the phrase as a part of its advertising for its electronic reader and using it prominently in several print advertisements. Ali's licensing company has filed suit, alleging that this improperly suggests that Ali endorses the product and since he apparently has not been paid to do so, it is apparent that he doesn't endorse it. This suit has been recently filed and its progress will be interesting. Maybe not as interesting as the "Thrilla in Manila" or the "Rumble In the Jungle" but nonetheless interesting to us IP nerds.
