Milwaukee filmmaking partners Andrew Swant and Bobby Ciraldo created a buzz on the Internet again this week when they sued one of the world's largest media conglomerates.
Swant and Ciraldo, the duo behind the 2007 Web sensation "What What (In the Butt)" -- a hokey animated ode to getting it in the butt by Samwell -- filed suit last week in the U.S. District Court in Milwaukee against South Park Digital Studios and its parent companies for multiple counts of copyright infringment over a 2008 episode of the Comedy Central cartoon South Park in which the character Butters performs the song in an animated recreation of the video.
Ciraldo talked with OnMilwaukee.com about taking on Goliath and what a lawsuit over a video about butt sex means to the future interpretation of fair use laws.
OnMilwaukee.com: When you made "What What (In the Butt)" did you have any idea it would become the viral hit that it became?
Bobby Ciraldo: Maybe. You never know for sure what's going to be a hit, but while working on the video we had a feeling that the odd combo of the racy song and the cartoonish visuals definitely had the potential to develop a small cult following. We also test-screened the video a few times at The Green Gallery while it was in different stages of development, and people always seemed to have really strong reactions to it; laughing hysterically throughout at Samwell's incredible performance. We really worked hard on this video. It took a long time, and we paid for it out of our own pocket. We couldn't be happier that it became one of the most watched music videos of all time.
OMC: Did you know about South Park's parody prior to its airing about? Were you ever contacted by the show?
BC: It was a total surprise to us, and we don't consider it a parody. It's more of a re-creation or a "cover" than a parody. Weird Al does parodies of songs, but he almost always licenses them from the original artists. He then writes new lyrics and usually creates a completely different video. We just assumed that we would be contacted by someone at "South Park" or Comedy Central at some point, or that a check was in the mail, or that there had been some sort of mix-up with the licensing department.
OMC: Why do you feel you deserve compensation from the show?
BC: Right now we make a portion of our income by licensing the "What What" video to shows on television, like we did with Comedy Central's "Tosh.0." Larger, mainstream companies are still pretty new at this whole idea of licensing original content from from Web video artists, so it's understandable that those in charge of licensing over at Comedy Central (or wherever) may have made a mistake when they licensed only the song and not the video.
OMC: What do you say to people who think your lawsuit will be harmful to free speech in that parody has traditionally been protected by the first amendment?
BC: We understand that fair use is an important legal concept, but the rules need to be more clear. Viacom's position on fair use is contradictory: whenever they take copyrighted works from someone else, it is fair use; whenever someone takes copyrighted work from them, it's copyright infringement. We don't think Viacom should get to operate with a double-standard like that. We don't want to prevent shows like "South Park" from doing covers of our work, we just want to make sure copyright of independent artists is respected. In this case, we don't believe what they did counts as parody. There is a common misunderstanding that anything funny equals parody, but that's simply not the case. At the end of the day, all that was accomplished by South Park's use of our video was to repeat the same joke that we had already made.
OMC: Did you try contacting the "South Park" camp prior to filing the lawsuit and what was their response if so?
BC: We love "South Park" and we have a huge amount of respect for Matt and Trey, in fact they're not even listed in the lawsuit. We sent an e-mail to them right after the episode aired, thanking them for re-creating our video. A lot of people make the mistake that Samwell made the "What What" video, and we wanted to introduce ourselves to Matt and Trey, but they never replied. Several months later we found out that Samwell had been paid for his song, so we mailed a letter to Matt and Trey explaining our situation and asking for their help in figuring it out. We assumed they had nothing to do with licensing, but would probably be in a position to talk to the right people. We never heard back. Several months after that, when the episode was about to come out on DVD, we decided we had no choice but to send a cease and desist letter. This was done in order to let them know we were serious about our intention to defend our copyright if pressed. As a result, they had a large Los Angeles litigation firm reply with a seven page threatening letter.
OMC: It's been a long time since the "South Park" episode aired, why did you wait until now to file a lawsuit?
BC: There's a three-year statute of limitations for these sorts of cases, and we wanted to spend as much time as possible making sure we knew what we were doing. You don't just go and sue Viacom, it's one of the largest and most powerful companies in the world! We're just two guys who work on goofy art videos in Milwaukee, and we knew this would be a David and Goliath sort of lawsuit. We knew we'd better get the facts straight and talk to as many experts as possible, because this is not the sort of thing one should enter into without being fully prepared. We do regret that the timing coincided with South Park's recent Inception plagiarism fiasco, but we only heard about that incident from the press, after our lawsuit was filed. It's been extremely interesting to read up on the Inception-gate situation now, though. We can't help wondering if their apology would have been so forthcoming had the blogosphere not made such a big fuss on the behalf of the original artists.