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Commentary On Guthrie Borrowing the Underlying Tune

A number of commentators have noted the importance for fair use analysis of Guthrie having apparently borrowed the underlying tune for This Land is Your Land from an earlier tune. The earliest mention of this I found was in the comments here (Comments: Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads):

On a different tack, the consensus among folkies is that Woody Guthrie himself put his own "This Land" words to an existing tune, "Little Darlin' Pal of Mine". That tune was copyright by A.P. Carter and/or Ralph Peer, both of whom were notorious for recording and copyrighting materials which were already being sung by others. One source cites the melody going back to an older tune, a Baptist Hymn "Oh My Lovin' Brother".

Compare clips of the two songs:

Guthrie's This Land is Your Land [MP3] - Courtesy of the University of Virginia Library's Lift Every Voice exhibit.
Carter's When the World's on Fire [MP3] - Courtesy of EFF.

Martin Schwimmer notes, "So now there are two widely-known clouds on the title that weren't widely-known last week" and asks, "What alternatives were available to the copyright owner?" (All Jib Jab, All The Time). Yep. Ooops.

Doc Bug wonders if strict enforcement of copyright would have kept Guthrie from recording "This Land is Your Land" in the first place (More JibJab, and thinking about deregulation). Answer: Probably. Maybe we need to change the law then, according to Doc Bug:

As Lessig points out, we citizens have the right to change the law. Copyright is a government regulation on the marketplace of ideas, one that restricts some speech in the hope that it will encourage others to produce more. We're all fully aware that the Net has radically shifted how the marketplace of ideas now works and will continue to work in the future. Isn't it about time we reexamined whether this government regulation still makes sense?

Other, brief commentary on this issue:
Reason's Hit and Run: This Song Was Their Song
Eugene Volokh: This Song Is Whose Song?

General Commentary on the Controversy

Martin Schwimmer has more comments on having noted the parody of Guthrie in JibJab's version (Copyright: Blawg Channel Gets The Joke):

Now, before you dismiss the fact that I saw the parody clearly merely because I practice copyright and trademark law and do this stuff all day, please note that as early as eighth grade, Mrs. Jacobson, our English teacher, lauded my ability to spot metaphors and the like in the assigned reading (a comparative advantage accruing to me by being the only person wonky enough to do the reading).

Be that as it may, as the Nader/Priceless court says, perceiving the parody clearly (or readily) is not the critical factor - parody can be subtle.

Free Culture Blog is worried what would happen if the parody isn't a fair use (Some troubling implications about the Jibjab case).

Finally, Technician Online claims that, in regard to the controversy, Guthrie would laugh his guitar off.

Previous Coverage

Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads
EFF Defends JibJab Animation as Parody
JibJabapalooza