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JibJab Sues for Fair Use of Right to Parody

Posted by timothy on from the dark-side-of-the-farce dept.

An anonymous reader writes "A few days ago, Slashdot mentioned that JibJab was threatened by a copyright lawsuit. Well, it looks like JibJab decided to sue first with the help of the EFF. Lots more info here." (Here's the Bloomberg News article.) Update: 07/31 20:43 GMT by T : Seth Finkelstein has posted the court info on his website.

17 of 273 comments (clear)

  1. Good for them by raistphrk · · Score: 4, Interesting

    In intellectual property cases, a good offense is probably the best defense. At least this way, if they lose their declarative judgement, they can minimize the amount of damages. But I don't see that being a problem, in this case: the JibJab parody is grounded in the orignal work, not simply capitalizing off it. The criticism in the clip is that this land ISN'T your land AND my land, but just "my land", in that each candidate is saying "I deserve respect and you don't."

    But yeah. I think Woody is up in heaven, proud of JibJab for their work.

  2. Well by iamdrscience · · Score: 3, Interesting

    By the letter of the law, Jib Jab's use of the song is probably not parody. That said though, I feel that really, their use of the song should probably be allowed. So hopefully, this will come out favorably for Jib Jab and establish some nice legal precedent. I think that this is probably why the EFF has chosen to take this case in particular.

    Another thing though, I feel less inclined to protect the rights of the owner of a song or other work when the owner is not the person who actually wrote the song. In this case, it is not Woody Guthrie's family suing, it's a company.

    1. Re:Well by Jeremy+Erwin · · Score: 2, Interesting
      I'm not sure that JibJab's case is that weak-- the accompanying video does mock some of the original lyrics.

      Guthrie's first verse

      This land is your land, this land is my land.
      From California to the New York Island
      From the redwood forest to the Gulf Stream Water
      This land was made for you and me.


      The court in Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc. (109 F.3d 1394). used the following reasoning to deterine that The Cat NOT in the Hat! was not parody

      These stanzas and the illustrations simply retell the Simpson tale. Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss' characteristic style, it does not hold his style up to ridicule. The stanzas have "no critical bearing on the substance or style of" The Cat in the Hat. Katz and Wrinn merely use the Cat's stove-pipe hat, the narrator ("Dr. Juice), and the title (The Cat NOT in the Hat! ) "to get attention" or maybe even "to avoid the drudgery in working up something fresh." Acuff-Rose, 114 S. Ct. at 1172. While Simpson is depicted 13 times in the Cat's distinctively scrunched and somewhat shabby red and white stove-pipe hat, the substance and content of The Cat in the Hat is not conjured up by the focus on the Brown-Goldman murders or the O.J. Simpson trial. Because there is no effort to create a transformative work with "new expression, meaning, or message," the infringing work's commercial use further cuts against the fair use defense.


      Despite the fourth ("Private property") and the sixth ("Relief Office") verses, which are less frequently reprinted in "patriotic" songbooks. the popular conception of "This land" is that it promotes national solidarity. Jubjub has penned one set of verses for Bush, and one set for Kerry. The theme of solidarity becomes one of divisiveness.

      Nevertheless, this transformation is not quite novel-- Cappy Israel wrote:
      This land is your land, but it once was my land
      Before we sold you Manhatten Island
      You pushed my people to the reservation
      This land was stole by you from me.


      Nor is Jubjub's cynicism novel.
      As I went walking the oil filled coastline
      Along the beaches fishes were choking
      The smog kept on rolling. the populations growing
      This land was made for you and me.
      --Country Joe McDonald


      In fact, there are a host of verses, written by dozens of folk singers, for a variety of political and artistic purposes. In 1971, Pete Seeger wrote of this phenomenon
      The publishers of this song, who have the difficult job of collecting royalties for its use and seeing that it is not misused are probably wincing by now. I am certainly not making their job any easier. Let me say simply that all of the verses printed in this article are copyrighted by the same company that copyrighted the original song. And I suggest that if you make more changed yourself, you should send them into the company so at least they'll have a complete list of all the good new verses. Here's their address...
  3. It's not a parody by Billobob · · Score: 3, Interesting

    It's political satire - they are not making a parody of the song itself. This use of the song is not protected in courts.

    --
    If you have to ask, you'll never know.
    1. Re:It's not a parody by Billobob · · Score: 2, Interesting

      So anything of a political nature is protected under the first amendment and is special? Sorry, that just doesn't make any sense. There shouldn't be any difference between making a political statement and, say, a statement about how much you hate cheese.

      --
      If you have to ask, you'll never know.
  4. These guys were on Leno this week by chcorey · · Score: 5, Interesting

    The brothers Gregg and Evan Spiridellis appeared on Jay Leno earlier this week talking about their website and how popular it has become over the past months.

    I give these guys Kudos for having the balls to try to make a living off of making these online cartoons.

    In the interview, they said that they make money off of donations and they joked that they'd just have enough money from this "Your land is my land" cartoon to pay one month's rent and maybe a few meals.

    I hope they are allowed to continue what they are doing but unfortunately, i'm not familiar with american copyright laws.

    --
    Dog for sale: eats anything and is fond of children
  5. The value of a good sense of humor by Anonymous Coward · · Score: 2, Interesting

    I think one of the most scarry thing in this world is people taking things to serious.
    You must be able to make fun of, parody, joke with anything, especially the things that are very well known, like a president, etc.

    Religion is one of the things we people should start to take a little LESS serious!

    Don't make fun of Emacs, you will get a ^F^a^t^w^a and it will killall -9.

  6. Barbie in a Blender Day by chatooya · · Score: 4, Interesting

    From FreeCulture.org, the student movement for free software, free speech, and free culture, comes: National Barbie in a Blender Day.

    It's a celebration of victory in a similar free speech / fair use case that finished recently. Mattel had sued a photographer for taking photographs of Barbie in a blender and other appliances. The ACLU took on his case and he not only won, but Mattel had to pay his $1.8 million in legal fees.

    The Barbie in a Blender gallery is pretty great.

  7. I hope they win by The+Tyro · · Score: 2, Interesting

    but it's for purely selfish reasons... I want them to keep making those little cartoons. I've gotten some real gut-busting laughs out of those guys. I watched the latest one over and over... Also, if you can find it, watch the old hip-hop one they did with Bush, Clinton, Gore, etc (I think it was called "Capitol Ill") that one was also an unqualified riot (Sorry... I googled, but couldn't find a link)

    It'd be a shame to have those guys muzzled; particularly when they do such nice work (there are a lot of terrible flash cartoons out there).

    --
    Even if a man chops off your hand with a sword, you still have two nice, sharp bones to stick in his eyes.
    1. Re:I hope they win by phats+garage · · Score: 5, Interesting
      Woody Guthry used to include a copyright notice on songbooks he would mail to his fans:
      • 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.

        (from www.woodyguthrie.com)

      I like to think that he'd approve of jibjabs outstanding version of one of his songs ;-)

    2. Re:I hope they win by srleffler · · Score: 2, Interesting

      Does anybody know if This Land was ever published with that notice? IANAL, but a smart attorney would probably argue that that notice constitutes a non-exclusive license to use the song.

  8. Re:Its not about IP by cynic10508 · · Score: 2, Interesting

    The parent post is definately trolling.

    Here, here.

    I thought the cartoon was funny and equally made light of both candidates.

    Glad somebody else realized that. It was pretty one-to-one. Although I realized that everything said about Bush has been said in the past four years while the Kerry stuff seems to be fairly new. I guess the only one-sided part is where Howard Dean goes insane on stage.

    But the parent is right about one thing: It's not about IP [it's really about money!]

    Very true. So is it a vast, right-wing conspiracy plotting to keep quiet opinions about their candidate that've already been voiced for years, or is it greed of an IP-owning company? I think Occam's Razor points to the latter.

  9. Re:Permission to use already given ? by daniel23 · · Score: 2, Interesting

    > A good many of Woody's songs were modifications of other songs. It's called "The Folk Process."

    Or even "the cultural process" since this is the way human cultural works and develops: taking existing material and repeat it, modify it and adapt it to the current situation while still keeping the basic form.

    Making this illegal is absurd.

    I think this story may be used as a kind of lackmus test for the current state of IP laws. Given the the known and aften cited intend of the creator, the length of time since it was published and all, I'd say the current state is perverted.

    --
    605413? Yes, it's a prime.
  10. Re:Its not about IP by Tassach · · Score: 2, Interesting
    So the same requirements as membership to the real Democratic party
    Nah, the Democrats will take people with a lower net worth, and aren't as biased against people who earned their money/position as opposed to inheriting it. In any case, the Democrats aren't the ones who are really in control of things. Even when the Dems have a majority in Congress and/or have thier puppet in the White house, it's painfully obvious who's REALLY running the show.
    --
    Why is it that the proponents of "one nation under God" are so eager to get rid of "liberty and justice for all"?
  11. Re:I wonder if this will weaken their case by MourningBlade · · Score: 2, Interesting

    I wonder if the same strategy will work for prostitution.

    Funny you should mention it.

    There have been several cases where ticket scalpers have circumvented the law by doing things like selling $100 hot chocolate...with tickets to the event included for free.

    Gifts back and forth don't usually work because the litmus test is "are you expecting to exchange your work for money in this transaction."

    Prostitutes will rarely give away their product for free in the hopes that someone, sometime might donate to keep their services going, or in appreciation.

    We usually refer to those as "floozies," not prostitutes.

    In the science world, it is common to give an honorarium to a guest speaker. He speaks for free, in the interest of science, but you may choose to express your gratitude in the form of money. Not all places do this, and many scientists don't let the honorarium influence their decision. Tax-wise, I believe the honorarium falls under the "gift" category, but I'm not sure.

    Anyways, if you want to have sex with a prostitute legally, just bring along a camera.

  12. Re:Its not about IP by Tassach · · Score: 2, Interesting
    What a stupid statement. If Bush was anything like a king he wouldn't be able to be voted out right?
    Call me cynical, but at this point I think the only reason we're having elections at all is that the polls are close enough that Bush's handlers think they can pull the same shenannigans they did in 2000 to ensure his victory. If the polls start show that he's got a serious chance of losing, I have a strong suspicion that there will be a convienient "terrorist" attack giving him an excuse to postpone the election indefinately.

    I hope I'm wrong. I really do. But I wouldn't put it past the Skull & Bones junta to try for a repeat of 1933 if they thought they could pull it off. The situation, and the personalities involved, are far too similar for any degree of comfort. Those who forget history are doomed to repeat it.

    --
    Why is it that the proponents of "one nation under God" are so eager to get rid of "liberty and justice for all"?
  13. Re:Parody v. Satire by Coral+Snake+USA · · Score: 2, Interesting

    I thank another case of importance here, (And in fact one that may have overturned the "Suess Estate v. Penguin Books" case) was the case of an African American Woman who wrote a novel called The Wind Done Gone that was essentially a SATIRE of Marret Mitchel's book Gone With the Wind. This woman's book used the charicters from Gone With the Wind to tell the story of such Gone with the Wind events as slavery, the burning of Atlanta, Sherman's subsequent "march to the sea" and emancipation from the point of the female slave charicter rather than the female slave owner charicter as Mitchel had done. I believe that she won her suit against Margret Mitchel's estate for the right to use Mitchel's charicters in this book which was obviously a SATIRE built around Mitchel's charicters and NOT around Mitchel herself.