Findlaw's Modern Practice publishes an article analyzing the JibJab case (You Can't Say "Parody" / That Really Scares Me). The article is a good, solid summary of the issues with a handful of occasionally humorous, sometimes groan inducing legal riffs on the JibJab parody:
You can't say [parody] / that really scares me /The article concludes that, ultimately, JibJab had the stronger case:
sometimes a [lawyer] can / come in quite handy.
Jib Jab has the stronger case, based on the limited nature of Ludlow Music's copyright, the fact that the Jib Jab work is indeed a parody, and the weight of relevant fair use factors.via Patently Obvious
INDICARE (INformed DIalogue about Consumer Acceptability of dRm solutions in Europe) has an editorial that does a pretty good job of summarizing the entire JibJab saga (Knock Out by Copyright Expiration: The JibJab Media Inc. v Ludlow Music Inc. Copyright Affair Watched from a Distance). The abstract:
This Editorial is about two intertwined success stories, and a third derivative one about copyright. It is about the success of Woody Guthrie’s song “This Land is Your Land”, and the success of JibJab Media’s web animation “This Land. A parody of Woody Guthrie’s”. Our focus is on the copyright thread, which runs in parallel and ties both stories together. Although at the time of writing the case seems to be settled, many relevant questions remain open.
We're learning a little bit more about the settlement in the JibJab case. WMCTV in Memphis runs a very abbreviated version of an AP wirestory on the issue (Guthrie publisher lets JibJab cartoon keep using 'This Land'). The most interesting part is the concessions that JibJab made:
The creators of JibJab also agreed to provide a link on their Web site to the song's original lyrics and to donate 20 percent of any profits to the Woody Guthrie Foundation.The Mercury News (annoying reg. req.) has a much longer version of the AP story (Guthrie publisher lets JibJab cartoon keep using 'This Land' song).
WIRED has received a letter pointing out that http://www.ludlowmusic.com/ redirects to JibJab (Rants & Raves: JibJab Is Free for You and Me). The letter claims that the site was purchased by JibJab, but I doubt that is true. The ludlowmusic.com domain is registered to an Andrew Vieau of Buffalo, NY.
For all my JibJab coverage: JibJab Archive.
So Guthrie's original joins the Star-Spangled Banner, Amazing Grace, and Beethoven's Symphonies in the public domain. Come to think of it, now that "This Land is Your Land" is in the public domain, can we make it our national anthem? That would be the most fitting ending of all.
Ludlow's chief legal representative, Paul LiCalsi, said on Wednesday that because "This Land" was last copyrighted during a period when the song was technically considered unpublished, Ludlow's rights to the song never lapsed, he said.So why did they settle?
"Since there was no official publication after the last copyright, the song is still protected under the law," said LiCalsi, of the Chicago-based firm Sonnenschein, Nath & Rosenthal.
For all my JibJab coverage: JibJab Archive.
This past weekend rumors were running rampant that the JibJab case had been settled with a resounding victory for the two brothers behind the popular parody of Woody Guthrie's This Land is Your Land (Rumor Mill: JibJab Settles Copyright Lawsuit - Complete Victory!).
08/24/2004 5 NOTICE of Voluntary Dismissal WithoutAlthough the dismissal doesn't tell us the final deal, given that the parody is still available on the JibJab website, we can safely assume that JibJab prevailed in the main issue: continuing to distribute the parody.
Prejudice by Jibjab Media Inc., (Cohn, Cindy) (Filed on 8/24/2004)
I'm sure we will learn more when EFF makes an official annoucement.
EFF has issued a press release: Music Publisher Settles Copyright Skirmish Over Guthrie Classic.
During the course of investigating the case, EFF learned that "This Land is Your Land," the classic Woody Guthrie song, is part of the public domain and has been for several decades.See also, WIRED, which has more details on the renewal story (JibJab Is Free for You and Me).
EFF's investigation revealed that "This Land is Your Land" appears to have been in the public domain since the early 1970s. Woody Guthrie wrote his classic American song in 1940, when the copyright laws granted a copyright term of 28 years, renewable once for an additional 28. According to EFF, the initial copyright term was triggered when Guthrie sold his first versions of the song as sheet music in 1945. The copyright on the song then ran out when Ludlow failed to renew its registration in 1973. Ludlow believes its copyright -- initially filed in 1956 and renewed in 1984 -- remains valid and disputes EFF's claims....
JibJab dismissed its suit against Ludlow today. As part of the settlement of the case, JibJab will remain free to continue distributing the "This Land" animation without further interference from Ludlow.
EFF has posted the original 15-page songbook in which the composition was first published: Ten of Woody Guthrie's Songs: Book One [PDF].
For all my JibJab coverage: JibJab Archive.
The rumor may be that the JibJab case is all but over (Rumor Mill: JibJab Settles Copyright Lawsuit - Complete Victory!), but some details have emerged. In particular, EFF's complaint. Read the short, 7-page document: JibJab Media Inc. v. Ludlow Music Inc., Complaint for Copyright Misuse and for Declaratory Relief of Non-Infringement of Copyright [PDF]. Non-infringement and misuse ... interesting. Here are some of the more interesting paragraphs:
COUNT I: DECLARATORY RELIEF OF NON-INFRINGEMENT ....So far, expected, but there is also the misuse of copyright claim.
18. JibJab contends that the creation and dissemination of its “This Land” video is a fair use of the Guthrie Composition and therefore, not an infringement of the copyright in that composition. Among other reasons, JibJab believes that the video is a transformative parody of the Guthrie Composition and not a substitute for the original. Ludlow, on the other hand, believes JibJab’s parody to be an infringement.
19. JibJab is informed and believes that the copyright on the Guthrie Composition has expired or is invalid.
20. JibJab is informed and believes that any copyright held in the Guthrie Composition is extremely limited because the majority of the melody of the Guthrie Composition is a derivative work of a song entitled “When the World’s On Fire” recorded by the Carter Family in 1930, ten years before the Guthrie Composition was written.
21. JibJab is currently distributing the “This Land” video and intends to continue doing so for as long as there is public interest, at least through the November, 2004 presidential election.
COUNT II: MISUSE OF COPYRIGHT ....And, finally, the relief sought:
27. Plaintiff is informed and believes and based upon such information and belief alleges that Defendant’s motivation in demanding the removal of the “This Land” video from the Internet was not to protect any market for the Guthrie Composition as an allegedly copyrighted work or any other interest protected by copyright law, but instead to stifle free speech and artistic commentary on the Guthrie Composition.
28. Plaintiff is informed and believes and based upon such information and belief alleges that Ludlow is using threats of copyright infringement to restrain JibJab’s free speech and artistic expression and as leverage to force its website service provider to restrict this speech from public access on the Internet....
30. Ludlow engaged in the misuse of its copyright, including in the letters of July 20, 23, and 26, by claiming that the creation and dissemination of the “This Land” video constituted copyright infringement when it knew that they did not.
2. The Guthrie Composition is no longer protected by copyright and/or is part of the public domain.Interesting stuff. Will we learn more?
3. Damages for copyright misuse according to proof;
4. Judgment barring Defendants from enforcing any copyright in the Guthrie Composition unless and until their misuse has ceased;
I just heard that EFF has won its case representing the Jibjab guys. EFF contended that Woodie Gunthrie didn't renew copyright on "This Land is Your Land" back in the day when copyright terms had to be renewed. Suits were filed, but now, apparently, according to the copyright rumor mill, EFF and Jibjab have "settled," whatever that means. Apparently they got "everything they wanted" because it turns out nobody ever renewed the copyright on the song.I figured that the actual copyright status of the music, and possibly the lyrics, would certainly be an issue.
I suspect that the settlement keeps Ludlow Music out of court, where the copyright status of This Land is Your Land would be decided once and for all. This way, Ludlow keeps getting royalties and doesn't risk losing the copyright entirely. Note that the actual complaint by EFF has not yet been made widely available, though EFF generally publishes all its legal documents right away. This may have been part of the negotiation strategy with Ludlow, allowing them to back out of their threats without completely demolishing their claimed copyright.
Will all now be revealed? We will see.
UPDATE 1945 PT
EFF will neither confirm nor deny the rumor.
For all my JibJab coverage: JibJab Archive.
Earlier this week I noted what Arlo Guthrie, son of Woody Guthrie, had to say about the JibJab controversy (Arlo Guthrie on JibJab Parody: An "Incredibly Wonderful Bit of Hilarity"). Arlo's daughter (Woody's granddaughter), Cathy Guthrie, has come out in favor of the parody as well:
I can speak for myself and my immediate family including my Dad, that we all love it! We've all seen it and passed it along to our friends and family. It's incredibly clever, funny and a nice break from the heavy tones of politics going on right now. My personal opinion is that if I were the one who had written that song, I would be honored to have it used that way. If they start selling that song and making money, then I might be concerned about getting my royalties, but as far as I know, they haven't made any money from showing it on their site for free. That parody was made for you and me.Cathy Guthrie is one half of the Folk Uke duo (the other half of the duo being Amy Nelson).
The JibJab lawsuit doesn't seem to be getting much mainstream press, but WIRED continues to take charge of the story (JibJabbing for Artists' Rights). The most recent article talks to a couple of entertainment lawyers who believe it is a pretty obvious case of fair use:
"It's a smart move" by JibJab to pre-emptively sue Ludlow, said Steven Eisenberg, an attorney with law firm FeldmanGale in Miami, and current chair of the Florida Bar Association's entertainment, arts and sports law section. "They took the bull by the horns. I think they've got a great claim. It's clearly parody, satire and political commentary. This is exactly what fair use was created for."Canada's Globe and Mail has a short article about the JibJab saga (Cartoon creators sued). Newsforge has a feature on patent and open source that has an interesting paragraph on JibJab (A fresh -- and optimistic -- take on patents and open source):
"It strikes me as a particularly strong case for fair use," said Arnold Lutzker, an attorney with Lutzker, Lutzker & Settlemyer. "It doesn't strike me as a particularly complicated case." [links in original]
And an undetermined number of other patents on the list of 283 may be held by companies that offer no viable products or services and, in many cases, exist only to sue productive companies and people over patents (or patent rights) they have acquired one way or another, much the way Ludlow Music has jumped on JibJab for their hilarious "This Land" parody even though the original "This Land is Your Land" song was not written by Ludlow Music. (Indeed, its composer, Woody Guthrie, was a notorious song-sharer who would probably be doing benefits for the EFF's patent busting efforts if he were still alive.) [links in original]That's not a bad idea. Woody isn't available, but maybe Arlo could be convinced to do an EFF patent busting benefit.
Arlo Guthrie, folk singer son of Woody Guthrie, was recently interviewed on NPR regarding the JibJab controversy ('This Land' Parody Riles Rights Holder). For those who don't want to use Real, I've transcribed the relevant parts:
Q. So how did your father feel about the use of his songs? Did he regard them as his private intellectual property or were they for the public use?Bonus: Guthrie was interviewed at a Flying J truckstop in Des Moines, Iowa.
A. Well, I think, both. He was one of those guys that wrote a lot of songs and he said on numerous occasions that he wasn't really concerned about the money part of it, the publishing, the business part. He was more interested in getting the ideas out. And, having said that, he did set up in motion, he did give these songs to the Richmond organization, a lot of them anyway, to safeguard them and to protect them over the years. So I think there is a little bit of both.
Q. Your father was a political musician. What do you think he would have said about people using his music for political purposes?
A. Well, I really can't speak for him. I can just tell you that when I saw it a few weeks ago I thought it was one of the funniest commentaries if not one of the most directly inspired... I called my sister, I called my friends, I sent everybody a link to the site so that they could go see it. And we've all been laughing about it since then. I think my dad would have absolutely loved the humor in it.
Q. What else does your family have to say about it? Do you have any influence with the Richmond company?
A. Well, we probably do, but on the other hand, they don't call me for legal advice and I don't ask them for moral advice. It's a business operation. I think the thing that has concerned them, if what I've read is true, is that the parody doesn't overcome the song. There is this old song, "On Top of Old Smokey," that was a hit back in the fifties. No one remembers that anymore, we all remember "On Top of Spaghetti." I don't think that is a problem with this song because in three months it will be a moot point. It will have lost the humor and not be around forever. So, I don't see what the major complaint would be.
I don't think that this JibJab version of "This Land is Your Land" is going to replace the original song and it doesn't really compromise it. I think it makes fun of both of these guys to some extent. I just think it is incredibly wonderful bit of hilarity in the midst of an overserious conversation.
See also, NPR's discussion of This Land is Your Land as one of the top 100 American songs shaping the twentieth century (NPR 100: This Land Is Your Land). The 13-minute feature includes a discussion of the fact that the underlying melody is borrowed.
As has been widely reported, EFF has filed suit on behalf of JibJab to defend the "This Land" animated short. As we reported last week, music publisher Ludlow Music Inc., owner of Woody Guthrie's "This Land is Your Land," had threatened copyright litigation against JibJab. In light of the July 30 deadline that Ludlow had set down in its threat letters to JibJab and its upstream hosting providers, we felt we had little choice but to file suit to defend JibJab's fair use and free speech rights.
Both sides continue to exchange correspondence, and JibJab hopes this dispute can be resolved without further litigation. For the reasons discussed in our July 28 letter to Ludlow, we continue to believe that "This Land" is a fair use, especially in light of the fact that Woody himself borrowed the melody from an earlier song.
As noted previously, Bloomberg News reported that EFF had filed a lawsuit on behalf of JibJab (JibJab Files Lawsuit for Right to Distribute Parody?). I've now received anonymous confirmation that a lawsuit was filed.
More information as it develops.
"This Land" was made for you and me, JibJab Media says in a lawsuit seeking the right to use the Woody Guthrie song This Land Is Your Land in an online parody of President Bush and Sen. John Kerry....JibJab, which is run by brothers Gregg and Evan Spiridellis, says in its suit, filed Thursday in San Francisco federal court, that the video is a parody and doesn't infringe on Ludlow Music's copyrights.There is nothing on EFF's website that I could find and this is the only report of a lawsuit I've seen. I'm trying to confirm this report with EFF.
UPDATE 1150 PT
I've received anonymous confirmation that a lawsuit was filed (JibJab Does File Lawsuit - "This Land" a Fair Use Parody)
Other JibJab News
If this is danger, bring it onWith regard to JibJab the Blawg Channel points to Stanford's Copyright & Fair Use Center for more information on the issues involved (Research Site of the Day).
The Richmond Organization is alleging that an online cartoon parodying the presidential race is causing "huge" damage to its copyright of Woody Guthrie's folk classic "This Land Is Your Land." But what it's really doing is adding some much-needed levity to a heated political season. The owners of the copyright are asking www.JibJab.com to stop distributing the cartoon that features John Kerry and George Bush as cartoon characters singing new words to the patriotic ditty. As obvious political satire, it's surely protected free speech. It's irreverent. It's funny. It jabs both sides. The true danger would be a lack of good satire in a presidential election year. [emphasis in original]
USA Today had an odd column about the JibJab phenomenon. The article doesn't discuss the copyright issues, but is bizarre enough that I thought I'd point it out (This Net was made for you and me and the rest of the world).
I've now added a "JibJab Category" to my lists of categories to make following the story easier.
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".The author of the comment is John Dowell who blogs for Macromedia, developers of Flash. See also, Dowell's post on this subject (JibJab update).
Compare clips of the two songs:
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?
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).Andrew Raff has some very nice analysis about post-hoc rationalization and parody (Post-hoc Parody).
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.
The JibJab controversy continues unabated. Here are a slew of links.
Original "The Importance Of..." coverage:
Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads
EFF Defends JibJab Animation as Parody
Eugene Volokh must be getting a lot of email about this issue. We disagree, but he makes good points. Here are a few of his most recent postings:
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 2 31 July 2004
I've added a "JibJab Category to make following this story easier.
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 ...
Chris Cohen has been on a roll analyzing whether various derivative works are satires or parodies. The difference can mean one is legal and the other isn't under a fair use analysis. The basic rule is that a parody, which critiques the work borrowed from, is okay. Satire, which critiques something other than the work borrowed from, is not fair use. I tend to take a much broader view regarding whether something is parody (Parody of a Parody), so read on for some of my responses ...
UPDATED 0915 PT
UPDATED 2 1130 PT
UPDATE 3 31 July 2004
I've added a JibJab Category" to make following the story easier.