Woody Wouldn’t Be Pleased

July 27th, 2004

Filed under:
Music

Woody Wouldn’t Be Pleased

This is just shameful. Ludlow Music, copyright owners of the Woody Guthrie classic “This Land is Our Land”, are threatening JibJab, who made that amusing Kerry/Bush flash movie, with copyright infringement.

We consider it a case of political satire and parody and therefore entitled to the fair use exemption of the copyright act,” said Jibjab attorney Ken Hertz. So far there isn’t a lot of money involved. The brothers who made the movie, Gregg and Evan Spiridellis, have been distributing it pretty much for free (a paid-download option was available, but abandoned as most folks went for the free-on-the-Internet route).

Clearly this is an example of political satire, and falls under fair use law in the US. It’s particularly ironic that we’re talking about Woody Guthrie here. In the early 40s, he used the following as his copyright statement:

This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

Clearly, he probably would have been all right with this application of his music. I hope his ghost shows up and kicks Ludlow Music’s sorry, mercantile ass.

Comments: 6 Responses so far

Andrea
July 27th, 2004
2:28 pm

I am not a lawyer, but where in Title 17 (US Copyright Act) does it say that use of a work for satirical purposes is fair use? Satire is not criticism, comment, news reporting, teaching, scholarship, or research. It is not part of a private business meeting. JibJab.com is a business, not a non-profit education provider. JibJab’s website even says they have “continued desire to be ‘hip’ in the eyes of those who pay them big bucks to pursue their craft”. Their Flash animation of “This Land” is a PR tool and, much to their delight, has resulted in major media appearances and press mentions.

A substantial amount of the copyrighted work was used and the copyright owner (which is not the Guthrie estate) could have a credible argument that the parody compromised market perception of the work.

Now, don’t get me wrong. I like the JibJab piece. But their argument about fair use is questionnable.

Darren
July 27th, 2004
2:37 pm

I refer you to Suntrust v. Houghton Mifflin, 2001…I don’t really, I just like the sound of that.

This page, http://www.campusprogram.com/reference/en/wikipedia/f/fa/fair_use.html, says:

“Roy Orbison’s publisher, Acuff-Rose Music Inc, sued 2 Live Crew in 1989 for a parody of Orbison’s “Oh, Pretty Woman”. In 1994 the Supreme Court of the United States ruled in Campbell v. Acuff-Rose Music that parody even if done for profit, was covered under the fair use doctrine.”

I’m no lawyer either, but this ruling may apply to the JibJab guys.

This guy isn’t a lawyer, either, but has interesting things to say on the subject: http://www.corante.com/importance/archives/005314.php.

Andrea
July 27th, 2004
4:53 pm

Thanks, Darren. I think JibJab may be caught by the simple distinction between “satire” and “parody”. The Orbison / 2 Live Crew case had to do with 2 Live Crew’s parody of Pretty Woman. They weren’t simply ripping off the melody and key lyrics. They were making fun of the original song. A parody is a criticism of an earlier work. In that case, the Supreme Court said satire was a broader social critique. JibJab isn’t making fun of “This Land” — it’s making fun of the political candidates and perhaps campaigning in general. Guthrie’s original lyrics start off with a romp through the US countryside (along “a ribbon of highway”), but venture into criticisms of capitalism, a faulty social safety net, government programs, and perhaps even religion:

“One bright sunny morning in the shadow of the steeple /
By the Relief Office I saw my people — /
As they stood hungry, I stood there wondering if
God blessed America for me.”

It may be hard to argue that JibJab was mocking that. They *might* be able to argue that they were mocking the Peter, Paul and Mary version, but PP&M were using an abbreviated version of Guthrie’s lyrics and probably still pay royalty fees to the copyright owner.

Darren
July 27th, 2004
6:07 pm

That was kind of my feeling as well…did you read this guy’s entry: http://www.corante.com/importance/archives/005314.php. He makes a better case than I could that that the JigJag piece is a “paradigmatic example of parody”.

Andrea
July 27th, 2004
8:15 pm

Thanks. I couldn’t get that link to work this afternoon, but it seems to be up now.

I don’t see how JibJab’s work undermines Guthrie’s song. Guthrie wasn’t singing about the unity of America. He was basically saying, “Yeah, this is supposed to be our land. Sing that loud. But it’s a crock.”

In 1940, he wrote:
“Was a high wall there that tried to stop me
A sign was painted said: Private Property,
But on the back side it didn’t say nothing –
[God blessed America for me.]”
(http://www.geocities.com/Nashville/3448/thisl1.html)

In 1956, he changed it a little. (http://www.arlo.net/lyrics/this-land.shtml)

The guy from Corante.com says that JibJab’s parody “liberates the song” from mindless patriotism. That may be so…but the original song was not about mindless patriotism. And, sung just as the US was ending the Depression and considering whether to join WWII, it was politically explosive to question God and country.

Oh, jeez. I’m going on and on. It’s that flipping English degree seeping out. :)