Written by Jennifer Tutty (Principal), Alyce Evans and Lucy Diggle

Last week, Meghan and Prince Harry were in the news again, with reports claiming they were not happy with South Park’s recent episode, ‘Worldwide Privacy Tour’. For those who haven’t seen the episode, it features the prince of Canada and his wife, who move into South Park.

While the couple later dismissed the reports as ‘baseless nonsense’ and confirmed they would not be suing South Park after all (damn, that would have been an interesting case to follow!) – the news got us wondering:

1. Firstly, if Meghan and Harry had sued South Park, what legal claims might they have made?

2. Secondly, how does South Park continue to get away with mocking celebrities, world leaders, politicians, and well-known brands?

As lawyers, the topics of copyright law, trade marks, defamation and publicity / privacy rights spring to mind.

Before we dive into these, let’s take a walk down memory lane…

South Park’s history of roasting celebrities

You know you’ve made it when you become a character in South Park.

Over the years, the town of South Park has been visited by many celebrities and famous faces.

Some of the more controversial instances include:

– Kanye West being depicted as a self-absorbed hobbit trying to control Kim Kardashian.

– Sarah Jessica Parker being called a ‘transvestite-donkey-witch’.

– Barbara Streisand being the focus of an episode about a mechanical doppelganger of Godzilla.

– Our national treasure, Steve Irwin, being depicted with a sting ray sticking out of his chest.

Unsurprisingly, many celebrities have been less than impressed with how the show has portrayed them.

Additionally, there have been numerous internal battles from inside the cast. A notable example was when ‘Chef’ voice artist, Issaac Hayes, demanded to be let out of his contract, citing the show’s ‘intolerance and bigotry towards religious beliefs’.

Is South Park getting sued for celebrity roasting?

We scoured the internet far and wide to see whether many lawsuits have actually been filed against South Park. But we couldn’t find much.

Tom Cruise reportedly got close to suing South Park for the infamous episode, ‘Trapped in the Closet’. For those unfamiliar with the episode, it involved denouncements of scientology, Tom locking himself in main character, Stan’s, closet, and pleas from several characters for him to ‘come out of the closet’.

And most interestingly, there was a copyright infringement lawsuit filed by Brownmark Films over an episode that allegedly infringed the YouTube video ‘What What (In The Butt)’ by Samwell (which went viral in 2007). This progressed all the way to a judgement. We’ll touch back on this later!

What potential claims do celebrities have against South Park?

Before we get started, here’s a note about jurisdiction!

The producers of South Park are located in New York, USA. Therefore, when discussing what claims someone might make against South Park, we’ll be considering this question with US law in mind.

So, back to the question: What legal claims could a celebrity, politician, world leader, business or other person possibly make against South Park?

We list a few of the key ones below.

1. Copyright Infringement

Eg. That South Park has used copyright material belonging to a person/business without their permission. This could include a photograph, artwork, video recording, sound recording or other work protected by copyright.

2. Trade Mark Infringement

E.g. That South Park has used a registered trade mark belonging to a person/business without their permission.

3. Defamation

E.g. That South Park has made untrue statements about a person/business that has caused damage to their reputation.

This is the claim people often expect a celebrity, politician, world leader or business to make against South Park.

4. Breach of Publicity or Personality Rights

E.g. That South Park has used a person’s name, image or likeness without their permission.

What defences might South Park have against the claims above?

Now for the question you’ve all been waiting for… how are South Park getting away with this?

Disclaimer: We note that, for most of the claims above, this question doesn’t appear to have yet been tested in the US courts. However, by looking at the defences available, we can gain some insight into the potential reason why more celebrities aren’t taking legal action against South Park.

But first – The First Amendment and the Protection of Free Speech

Before we discuss the various defences available in the US to the claims above, let’s talk about the US constitution. Of critical importance is what is known as ‘The First Amendment’ (which was first enacted in 1791!).

The First Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Therefore, the First Amendment provides for the protection of free speech in the
US. As US case law shows, the Supreme Court has interpreted the First Amendment’s protection of ‘artistic expression’ very broadly.

The US courts give considerable weight to the First Amendment and the importance of free speech when considering the protection of:

– Intellectual property rights (in copyright and trade mark claims);

– A person’s reputation (in defamation claims); and

– A person’s ‘image’ (in personality rights disputes).

1. Copyright Infringement

In the US, the doctrine of  ‘fair use’ defines how copyright material can be used without the owner’s permission. Generally speaking, South Park can use copyrighted material if their use can be deemed ‘fair use’. 

Examples of uses that are generally considered ‘fair’ include when copyright material is used for the purpose of:

1. Criticism and commentary.

2. Parody.

3. News Reporting. 

Brownmark Films, LLC v. Comedy Partners – 682 F.3d 687 (7th Cir. 2012)

To provide an example of a fair use exception in action, lets return to the example mentioned earlier, involving the copyright case brought against South Park.

The episode in question – ‘Canada On Strike’.

The South Park character at the centre of it – Butters.

In this episode, South Park produced an animated version of Brownmark Films’ popular Youtube video, ‘What What (In The Butt)’.

In determining whether South Park had infringed Brownmark Films’ copyright, a key question for the court was whether the video fell under any fair use exception.

The notion of ‘transformation’ is an important factor in determining whether a person can take advantage of the fair use exception in a copyright infringement claim in the US.

Transformation involves a person using material protected by copyright and applying it in a different manner or building on the material for a different purpose. Where someone transforms copyright material for criticism, commentary, or parody, it is likely that the fair use exception will apply, and they will not be infringing the copyright in the original material.

In the South Park case, the court held that the video was transformative and an ‘an obvious case of fair use’. The court explained that the South Park video was clearly a parody intended to poke fun at the public’s recent craze in watching videos of poor artistic quality online.

The court also found that Brownmark Films failed to provide any evidence of market harm (to their original video). Finally, the court noted that, ironically, South Park’s video was likely to increase Brownmark Films’ revenue from the original video.

2. Trade Mark Infringement

US trade mark law gives registered trade mark owners the right to stop other people from using their trade mark in a way that “is likely to cause confusion” or “deceive as to the affiliation, connection or association of the trade mark owner with another” (TM Infringement Laws). 

In addition, US law gives famous trade marks additional protections. In these circumstances, even if a person’s use of a trade mark won’t be capable of creating confusion with the owner, if the use of the trade mark dilutes or tarnishes the trade mark, it will be unlawful (TM Dilution Laws).

Generally speaking, US trade mark law is more lenient on creators of books, movies, tv shows and art, than owners and sellers of other products.

For example, ‘expressive use’ of a trade mark in movies, TV shows, books, art and the like can serve as a defence to trade mark infringement in some states. 

Additionally, the First Amendment’s ‘non-commercial free speech defence’ can be relied on when a person uses another person’s trade mark to parody the trade mark. The courts have held that a good parody will reference the owner’s trade mark but not cause any confusion with the source of the owner or misrepresent any affiliation with the owner.

So, in a nut shell (and luckily for them), South Park producers are typically able to use the trade marks of others in episodes, without falling foul of TM Infringement Laws and TM Dilution Laws.

3. Defamation

In the US, the law of defamation is not uniform and is instead governed on a state-by-state basis. This means that the principles can differ between the states. In addition, the laws regarding how an individual sues for defamation vs. how a business sues for defamation can be different.

For general purposes, however, a defamation claim will be made out when the following occurs: Someone makes an untrue statement of fact about another person (Person 2) that damages Person 2’s reputation and Person 2 experiences loss as a result.

As outlined above, US defamation laws differ state by state. However, the major defences to defamation across the country can be categorised as follows:

– Truth: The statement was mostly true.

– Statement of opinion: The statement is one of opinion, not fact, and can’t be proven or disproven.

– Consent: The other person agreed you could make the statement.

– Privilege: Some statements are protected as a legal right (i.e. giving evidence in court).

Satire and Parody

In many cases over the years, US courts have also held that satire and parody:

– Is not defamatory;

– Is an opinion, rather than a statement of fact; and

– Is protected by the First Amendment.

While satire (which uses an original work to discuss or criticise something) is typically considered a defence to defamation, parody (which mimics and makes fun of the original work to make a point) stands as a defence when the statement is deemed to be so ridiculous that the average person would not believe it.

As we know, South Parks lavishes on making its episodes as outlandish as possible, and this is exactly what helps them. The more critical, obscene, unbelievable and ridiculous they are… the better for defending a defamation claim using the defence of ‘opinion’ on the basis of satire and parody.

4. Breach of Publicity or Privacy Rights

Similar to defamation, publicity rights in the US are dealt with on a state by state basis. This means there is no uniform law. Broadly speaking however, ‘personality rights’ allow a person to control the commercial use of their image and to prevent unauthorised use or intrusive uses of their image.

For example, let’s look at New York state law (note: South Park’s production company is located in New York). In this state, if a person, firm or corporation uses the name, portrait or picture of any living person for advertising or trade purposes, without that person’s written consent, they are guilty of a misdemeanour or, alternatively, a private cause of action may be bought by the individual involved.

Defences to a breach of publicity of privacy rights also differ from state to state in the US. While some states have designated statutes with defined defences, others rely on the common law.

For example, in New York (where South Park is produced), claims must be bought under the New York Civil Rights Act. This act protects against the non-consensual use of a person’s name, portrait or voice for commercial gain.

When a person tries to assert their right of publicity, the courts will need to balance their individual rights against people’s rights under the First Amendment relating to free speech and to protect the free flow of information. 

There have been court decisions which have dismissed publicity right actions on the basis that “informative or cultural” uses of a person’s identity are protected by the First Amendment.

Therefore, even when South Park use the name and/or likeness of a celebrity (rather than using insinuations), they may have a defence based on the First Amendment.

So – what’s our final answer? How do South Park get away with it?

It’s simple – because they generally, legally can.

And they no doubt have a kick arse legal team on their side considering and vetting every idea. (And yes, we would love to be a fly on the wall in that legal office!).

How would this all play out in Australia?

If an Australian TV show roasted a celebrity, world leader or big business…or copyright material was used for satire or parody purposes…what could we expect to happen?

How would Australia’s laws relating to copyright, trade marks and defamation apply?

Stay tuned for Part 2 of our discussion: ‘Celebrity Roasting: What would happen if South Park was Australian?’, coming soon.

Written by Jennifer Tutty (Principal), Alyce Evans and Lucy Diggle.

Published 27 February 2023.

Further Information

If you have an enquiry about any of the above, please contact us through our online form or via email at hello@studiolegal.com.au.

For more information on copyright, defamation and trade marks, check out our blogs:

Copyright

– 9 common mistakes people make about copyright.

– Copyright for Visual Artists: 11 things all visual artists need to know.

– Moral Rights 101: A guide for creatives.

Defamation

– When Fact Inspires Fiction: How to avoid defamation claims as a writer.

– A Princely Reminder: Recent developments to Australian defamation law.

Trade Marks

– Top Trade Mark Tips: How to use trade marks to protect your brand.

– How to choose the best trade mark ‘classes’ for your business.

Photo from South Park. Shared for the purpose of reporting news.

DISCLAIMER

Studio Legal are Australian lawyers. We are not qualified to provide formal advice on United States law and do not purport to do so in this article. The information in this article is of a general nature. It does not constitute formal legal advice and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.