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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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July 28, 2004

Are TV Networks "Inducing" Infringement by Promoting JibJab?

Posted by Ernest Miller

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 Guthrie’s 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.

Comments (3) + TrackBacks (0) | Category: Copyright | INDUCE Act | JibJab


COMMENTS

1. Bob Schwartz on July 28, 2004 08:59 PM writes...

Thanks for posting the HRRC release -- there was a delay in getting it on the HRRC site, but it's up now. As one who has been known to use familiar works as a basis for rhymed legal cautions, I did and do consider the JibJab work a "parody." As has been noted, it draws its vitality from the original; the "twist" is more on the song, not the campaign -- but the twist on the song is positive, while on the campaign it is mildly negative. Not all parodies need be critical or dismissive of the original -- we're talking parody, not burlesque. I haven't revisited the cases and they may well suppose otherwise. But as Mr. Bumble said, if the law supposes that, the law is an ass.

Bob Schwartz
counsel, HRRC

Permalink to Comment

2. Seth Schoen on July 28, 2004 10:55 PM writes...

Yesterday I was reading Martin Gardner's Favorite Poetic Parodies, in which "parody" is taken in the sense you describe, Bob.

Permalink to Comment

3. John Springer on August 1, 2004 04:42 AM writes...

Listen, paradie or not, something is horribly wrong when a piece of American culture like "This Land" is not in the public domain. I think the original 28 years is long enough -- maybe even too long. The objective of copyright law is supposed to be to encourage creativity, not to enforce corporate monopolies. If something is still popular after 28 years, the author has received his reward and its time for him to just be famous for producing a classic. But let the work belong to the people at that point.

Can you believe someone owns "Happy Birthday"? It's ridiculous.

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