I'm disappointed in myself that I didn't mention this earlier. The JibJab controversy has an obvious nexus with the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). If, as the copyright holders for "This Land is Your Land" claim, the JibJab parody is a violation of copyright then all the newscasts on the major broadcast networks encouraging people to see it are obviously "inducing" people to violate copyright and could be sued for big bucks. Millions of people have dowloaded the flash animation, and the INDUCE Act could make the broadcasters liable for nearly every single download. How will the shareholders like that, assuming there is still a broadcast company left?
The Home Recording Rights Coalition has issued a press release making this very argument. I've posted the press release in its entirety below because it doesn't appear to be on the HRRC website at present. UPDATE 1335 PT - The press release is now on the HRRC website: Are TV Networks "Inducing" Infringement?.
Of course, as the press release notes, this is not a conclusion that JibJab's parody actually does violate copyright. As I've explained, I believe it is a clear case of parody and likely protected under fair use (Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads). Eugene Volokh disagrees, though his argument is conclusory (JibJab SoSue).
UPDATE 2 1355 PT
Public Knowledge has issued a press release supporting fair use for the JibJab parody. Read the Public Knowledge press release below.
UPDATE 3 31 July 2004
I've added a "JibJab Category" to make following the story easier.
Read on for the press releases ...
Are TV Networks Inducing Infringement?
Music Publisher Threatens Suit
Over Song Parody Played On Network TV
Washington, July 28, 2004 The Home Recording Rights Coalition (HRRC) today pointed to the threat of suit against a popular political song parody as illustrating worrisome trends in copyright law, and, in particular, the danger posed by a pending bill, S. 2560, the Inducing Infringement of Copyrights Act of 2004. A music publishing company now holding the rights to the late Woody Guthries 1956 classic This Land Is Your Land has threatened to sue the creators of the widely circulated JibJab parody.
This case illustrates the potentially cascading effect of overly broad laws and court cases, HRRC Chairman Gary Shapiro said. Copyright terms have been extended for almost a century after the artist dies. Coverage for these protected works is claimed so broadly as to chill, threaten and squelch any possible creativity, in others, that the works may inspire. Now -- if S. 2560 were to pass anyone who popularizes, points to, or even discusses an allegedly infringing version would also face suit for infringement. It would then take a jury trial to prove that you did not intend to induce infringement.
This Land Is Your Land was written almost 50 years ago. The creators of the satirical JibJab web site produced a music video parody featuring images of President Bush, Senator Kerry, and other well-known political figures. It achieved such notice and acclaim that it was featured on the CBS Evening News. The creators were interviewed and lauded on ABC World News Tonight. When Ludlow Music, the present rights holder, threatened suit, the NBC Nightly News ran portions of it. Today, the CNN/Money site -- http://money.cnn.com/2004/07/26/commentary/wastler/wastler/?cnn=yes -- and others feature links to the full presentation on the JibJab site.
CBS is owned by Viacom, which owns a movie studio, Shapiro continued. CNN is owned by Time Warner, which owns a movie studio. Disney owns ABC. GE owns NBC Universal. By channeling viewers to the web site for additional plays of the allegedly infringing work, and even actively promoting it, these sophisticated businesses would seem to be knowingly inducing further alleged infringements. If S. 2560 were to pass, it would seem that they would be among the likely defendants, along with the JibJab creators.
Shapiro added that HRRC, of course, is not pre-judging the validity of the copyright claim against the JibJab parody. The right to parody, like other instances of fair use, is strongly grounded in the First Amendment. The point, he said, is that if such a case is considered strong enough to go to trial, S. 2560 would make potential defendants of Disney, CBS, NBC, CNN, and many others who have pointed to, forwarded, or publicly performed the JibJab work.
HRRC also noted, courtesy of the Techdirt site -- http://www.techdirt.com/articles/20040726/1733230_F.shtml that the view of copyright taken by publishers who acquire artists rights often differs dramatically from the views of the artists themselves. As reported by Techdirt, here is the copyright notice that Woody Guthrie himself affixed to a work:
"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."About HRRC
The Home Recording Rights Coalition, founded in 1981, is a leading advocacy group for consumers' rights to use home electronics products for private, non-commercial purposes. The members of HRRC include consumers, retailers, manufacturers and professional servicers of consumer electronics products. Further information on this and related issues can be found on the HRRC website, www.hrrc.org.
Public Knowledge Sees Copyright Overkill in Threats to JibJab Parody
Threats by a music publisher to sue the creators of a popular online parody are clearly copyright overkill, according to Gigi B. Sohn, president and co-founder of Public Knowledge.
The Richmond Organization, which holds the copyright to the 1940 Woody Guthrie classic, This Land is Your Land, has threatened a lawsuit against JibJab, a California-based web site that has used the tune in producing a political satire cartoon lampooning both President Bush and Senator John F. Kerry.
Claims by the publishers that the JibJab cartoon would hurt the song or do damage to the song are ludicrous, Sohn said, noting that the song was originally written as a protest against social conditions of the time, including references to people lining up for what were then called relief payments during the Great Depression. Woody Guthrie would probably have been delighted to see his song being used as a part of current political commentary, Sohn said.
Public Knowledge is a public-interest advocacy and education organization that seeks to promote a balanced approach to intellectual property law and technology policy that reflects the "cultural bargain" intended by the framers of the constitution. More information available at: http://www.publicknowledge.org
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.