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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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« Why Who Can Sue Under the DMCA is Important | Main | INDUCE Act (IICA) Press Roundup - 29 July 2004 »

July 29, 2004

EFF Defends JibJab Animation as Parody

Posted by Ernest Miller

WIRED writes a story on the JibJab controversy, looking fairly closely at the claims for and against fair use (Sue You: This Song Is Our Song). See also, this shorter Newsday article ('This Land' was made for comedy).

For a much more detailed analysis of the legal analysis, however, you can (and should) read the dueling letters between the legal representatives for the This Land is Your Land copyright holders and EFF, which is officially representing JibJab.

Ludlow's 4-page Cease and Desist Letter to JibJab's Lawyer: Re: JibJab Media Unauthorized Use of 'This Land is Your Land' [PDF]

Mr. Guthrie's musical composition is an iconic portrait of the beauty of the American landscape and the disenfranchisement of the underclass. As both a populist anthem and an ironic metaphor, "This Land Belongs to You and Me" contrasts a view of the "sparkling sands of her diamond deserts" and the sun shining on "wheat fields waving" with the city's working class in the "shadow of the steeple near the relief office" who grumble and wonder if such natural treasures embody their own experiece with this country. The Unauthorized Movie does not comment on those themes. Instead, Jib Jab merely uses Mr. Guthrie's lyrics and music as a convenient vehicle to caricature the partisan climate of the current presidential campaign. Although the combination of Mr. Guthrie's music with Jib Jab's script and animation is very funny, the caricaturing of the candidate's sound-byte attacks on each other does not transform the work into a parody of Mr. Guthrie's work.
EFF's 4-page Response to the C&D: Re: Jib Jab Media, Inc. and Ludlow Music, Inc. [PDF]
While your view of Guthrie's "This Land is Your Land" as being predominantly about "the beauty of the American landscape" and "the disenfranchisement of the underclass" is interesting, most Americans think of the song as an iconic expression of the ideal of national unity. Jib Jab's parody addresses, among other things, the lack of national unity that characterizes our current political climate (ending with the optimistic hope that unity might be rediscovered). In short, "This Land" explores exactly the same themes as the Guthrie original, using the parodic device of contrast and juxtaposition to comment on the original. See Abilene Music v. Sony Music Entertainment, 320 F .Supp.2d 84, 90-91 (S.D.N.Y. 2003) (emphasizing the role of contrast and juxtaposition as parodic devices). The parodic comment takes on an additional dimension of irony when viewed in light of the often omitted closing stanzas of Guthrie's original.
Read both letters, they do an excellent job of summarizing current law on these issues.

Bonus: EFF cites my claim that JibJab's use clearly parodies Guthrie's work in a footnote, "It is enough that the parody here is readily and objectively perceptible, as demonstrated by the fact that a variety of commentators already perceive it clearly" (Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads).

UPDATE 0900PT
EFF's official announcement: Update on JibJab's "This Land". via Copyfight

UPDATE 2 31 July 2004
I've added a "JibJab Category to make following this story easier.

via BoingBoing

Comments (2) + TrackBacks (0) | Category: Copyright | Culture | JibJab


COMMENTS

1. Andrew Greenberg on July 29, 2004 04:13 PM writes...

It would be most helpful to clarify the logically unstable parody/satire distinction. I think the most telling argument that the piece is parody is given by the complainant's reported remarks that the piece somehow reflects negatively on the song's reputation. If the latter were true, how could the animation not have, at least in part, commented on the song itself? Following that argument, one must necessarily engage in a tortured dispuation that shakes at the foundation of the parody/satire distinction itself.

The case is probably stark enough to prove a useful test of the issue -- for many of the reasons set forth in the letter. Factually, I don't think it is as obvious as others suggest that the piece is clearly parodic, in the legal sense, as opposed to satirical, in the legal sense. But substantively, in the sense of fair comment, it seems odd that the jibjab piece would be taken as a proprietal misappropriation of the song -- public policy ought to promote and NOT CHILL precisely that sort of thing.

Frankly, I think it unadvisable to assert claims like this in this context. The difficulty is that such songs are not available by compulsory license for synchronization.

The dispute over whether a jibjab could be copyright-censored if Guthrie's assigns preferrred to "protect" the work from association with the political commentaries suggests, at least to me, that perhaps an absolute right, permitting only parody and not satire, rather than one subject to compulsory license -- permitting any expressional variant if paid for, is way too much protection.

But as you know, I'm all about the balance. Maybe it is time to reconsider either the satire/parody distinction, or in that absence, the nature of the grant of rights itself?

So, don't blame the demand letter authors. Under the law, they have a case (I don't like their position as a betting man, but they have a case). Perhaps by asserting their claim, they are raising yet another interesting question about the proper balance and scope of the copyright act as applied to musical works and multimedia? For me, that's a good thing.

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2. Chris Rush Cohen on July 29, 2004 05:29 PM writes...

Here's a related post you may be interested in - http://chris-cohen.blogspot.com/2004/07/jibjab-video-am-i-to-be-labeled-flip.html

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