JibJab Sues for Fair Use of Right to Parody

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.

Comments

Good for them

[raistphrk]

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.

Re:Good for them

[Jayfar]

And I think 'heaven' is sentimental, hopeful bullshit.

You posted AC just in case there is a god and he reads slashdot?

Well

[iamdrscience]

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.

Re:Well

[Jim McCoy]

A parody mocks the artist or composer. A satire mocks someone else using the work created by the artist or composer. Parody is protected by fair use (since it is a sort of review or statement about the work in question) while satire is not.

JibJab is probably going to be ruled satire since it does not comment directly on Woody Guthrie or his works, but rather uses his works to make a statement about Kerry and Bush.

The relevant case law here is Dr. Seuss Enterprises vs. Penguin Books (9th circuit)

Re:Well

[iamdrscience]

Lawrence Lessig explains it well (and with examples) on his blog entry about it.

I'll attempt to do an executive summary though. The video will probably not be considered a parody because it does not make fun of the song itself, it just uses the song in its parodying of George Bush and John Kerry.

Re:Well

[nudicle]

The relevant case law here is Dr. Seuss Enterprises vs. Penguin Books (9th circuit)

Interested people can read the decision here.

Re:Well

[jrockway]

Who cares anyway? Just put the damn flash file up on Freenet and the problem is solved. The message gets out and there's nobody to sue. Fuck the government's idiotic regulations. This is exactly why we have Freenet.

Re:Well

[Veridium]

When you said this, you reminded me of an earlier version of a parody of that song:
This land is their land,
It isn't our land,
From the Wall Street office
To the Cadillac car-land;
From the plush apartments
To the Hollywood starland,
This land is not for you and me.

If this is our land,
You'd never know it,
So take your bullshit
And kindly stow it,
Let's get together
And overthrow it,
Then this land will be for you and me.

It's not a parody

[Billobob]

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

Re:It's not a parody

[Tassach]

It's political satire - they are not making a parody of the song itself

I don't know what planet you are living on. Parody and satire are not mutually exclusive. You can have satire which is not parody (EG any Dennis Miller routine) and you can have parody which is not satirical (EG any Wierd Al song). Or, as in this case, you can have something which is BOTH an amusing parody of a song AND a satirization of political candidates.

Re:Its not about IP

[cynic10508]

Its really about dubya trying to hide anything that shows what a dumbass he is. It's repression of free speech under the guise of an IP squabble.

As a Republican, I'm afraid I missed the Right Wing Conspiracy meeting on this one.

These guys were on Leno this week

[chcorey]

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.

The copyright isn't even valid.

[laing]

More info about this on EFF's site:

http://www.eff.org/deeplinks/archives/001779.php

Permission to use already given ?

[dackroyd]

From wikipedia Woody Guthrie has already given his permission.

"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."

There is something wrong where the author of a work doesn't give a damn about people using his material but his descendants get to control it for almost a century after his death.

Re:Permission to use already given ?

[kfg]

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

Roll on Columbia and Ramblin' Round were both to the tune of Goodnight Irene by Huddie Ledbetter (that's Leadbelly to you and me).

Woody was not a particular fan of the idea of "Intellectual Property" and violated it regularly and without compunction. All he really cared about was some sort of credit for what he himself had written. Folk music is the original "Open Source."

This Land is Your Land he clearly intended by his own words to dedicate to the public domain.

KFG

Re:Permission to use already given ?

[jc42]

We should probably also note the nice irony that the original version of "This Land is Your Land" was a strongly anti-private-property song, and we now have people trying to block a parody that Woodie Guthrie would have loved by claiming that the song is their own private property.

Of course, several of Woodie's original verses are very rarely heard these days, as people try hard to pervert it into a feel-good patriotic dittie. This is aided by the propensity of most people to learn only the first and sometimes second verses of songs.

Now we will segue into another long thread on the meaning of the term "irony" ...

Annoying!

[aka-ed]

A "registration-required" link.

Posted on Sat, Jul. 31, 2004
JibJab defends use of 'This Land'
Bloomberg News

""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 creates cartoons and children's books, wants a court order saying the song's inclusion in an animated video that shows Bush and Kerry slinging insults is a fair use under copyright law. The song's copyright owner, Ludlow Music, has threatened to sue JibJab if the song isn't pulled from its Web site, JibJab claims.

In the two-minute video, Bush's cartoon character declares that his Democratic opponent has "more waffles than a House of Pancakes," and Kerry counters that Bush "is a right-wing nut job." The video has been aired on shows including ABC World News Tonight, The Today Show and Larry King Live.

Kathryn Ostien, director of copyright, licensing and royalties for New York-based Ludlow Music, didn't immediately return a call seeking comment.

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."

Another case against copyright extension

[iamdrscience]

I think this case is a prime example of how copyright terms have grown out of control. Woody Guthrie wrote the song almost 3/4 of a century ago and has been dead for over 35 years. The fact that this song is still covered by a copyright is absolutely ridiculous. And the kicker is, it's owned by a company that has nothing to do with Woody Guthrie or any of his descendants!

Re:Its not about IP

[Anonymous Coward]

I'd love to say "Rah rah, Bush Sucks," here, but it's not like the Republicans hold some sort of monopoly on bad IP law. Who was president when the DMCA went through? How about the "Sonny Bono Copyright Extension Act" that protected artists by giving the Disney Corporation intellectual control over Steamboat Willy until we're all dead and buried?
This is not about politics. Someone wants to settle for half of some web site's T-Shirt sales and make a quick buck, because it's cheaper to hire a lawyer than it is to generate a Woody Guthrie Revivalist Movement.

Re:Its not about IP

[TykeClone]

The Right Wing Conspiracy meetings are on Thursday nights at 7pm

Review: Definition of Parody & Link song lyric

[Anonymous Coward]

Just as Michael Jackson's Beat It is to Weird Al's Eat It, the music is not changing but the words are. Yes, Al got permission but he was not required to. If you look up the legal definition of what a parody is you'll find: According to law.com parody is "the humorous use of an existing song, play, or writing which changes the words to give farcical and ironic meaning." Given that JibJab's lyrics (Read them for yourself) did not use the song in it's original state, and unless the definition of a parody has changed, Jibjab should be in the clear.

I'm curious

[iamdrscience]

I'd like to know what Arlo Guthrie, Woody Guthrie's son, would have to say about this case.

Barbie in a Blender Day

[chatooya]

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.

Re:I wonder if this will weaken their case

[chcorey]

Your post brings up an interesting question. Is setting up a site so that people can donate to your cause make it a commerical purpose?

Correct me if I'm wrong, but when a presidential candidate is campaigning and receives a donation, nobody considers that as a commercial purpose. But is it any different when it comes to a parody or a satire?

It's not redundant if you haven't seen it.

[Futurepower(R)]

It's not redundant if you haven't seen it. The Slashdot story makes no reference to the humor. Just because you have seen the movie, don't think that everyone has.

So, here is the link again. Be sure to see the Flash Movie, This Land. It's very funny.

Re:Its not about IP

[Tassach]

As a Republican, I'm afraid I missed the Right Wing Conspiracy meeting on this one

Silly peasant. Just being a registered supporter of the Republican party isn't going to get you invited to the V.R.W.C. meetings. Admission to the REAL Republican party requires at least one (and preferably more) of the following criteria:

1. A net worth well in excess of $100,000,000. Bonus points if got your money from Daddy instead of earning it yourself, and even more if your daddy got it from HIS daddy.
2. Your daddy (and, preferably, his daddy) held held a high political office. Elected office helps, but a high-level appointed position (cabinet-level, head of a major agency, or major embassadorship) is almost as good.
3. Be the CEO or on the Board of Directors of a billion-dollar corporation. Earning that position by personal merit and hard work is marginally acceptable, but not nearly as good as having gotten it through nepotism.
4. Daddy bought you a diploma from an Ivy League school. Any peasant with a brain can EARN one, so that's nothing special. Only the RIGHT kind of people have the money and political connections to actually BUY one. (Note that this generally requires requires a bribe^H^H^H^H^H donation at the name-a-building-after-granddad level)
5. Membership in the Skull and Bones fraternity. Of course, admission to this select group is generally granted based on having met most or all of the preceding criteria.

Off-topic

[foidulus]

but in the same vein. If I had any artistic talent, I would set up a Alient vs. Predator website, "Election 2004, Bush vs. Kerry, regardless of who wins, we lose"-stolen from the Alien vs. Predator tv commercial.

Not Original lyrics or performance

[myc_holmes]

Funny - I don't remember ol' Woody singing the words "U.N. Pussy" or "Right-wing Nut Job" in any of his performances, nor does it appear to be in the copyrighted text of the lyrics.

So the copyright violation is what, exactly?

This is clearly a parody of a song used in satire.

I hope they can get punitive damages in their preemptive suit.

Parody v. Satire

[commodoresloat]

A couple things are important here. First, the Dr. Seuss case is not a Supreme Court case. I think it is possible that any precedent from that case would be overturned at the Supreme Court but that really depends on what arguments the justices want to listen to. Nevertheless, it is the common law now, at least in the 9th.

Second, the federal court made it clear in that case that "parody" and "satire" were not two discrete categories that did not overlap. Someone else quoted the decision itself -- the essence is that it is possible to make fun of the work as well as make fun of something outside the work (in this case, the election). In the jib jab case I think it's obvious the artist is doing both. Also, the very rationale for the distinction -- that the artist must actually have some reason to use this particular work to make his or her point rather than just picking it at random -- is clearly met in the jibjab case. The artist is making a comment about what is said in the lyrics when he or she changes them. I think bloggers have turned this into a more ironclad distinction than the decision merits.

Also, a lot of slashdotters and apparently bloggers seem to think that the reason for the distinction is to protect an artist's right to make fun of another artist's work. It is not. The reason is to protect an artist's right to make a point. Insofar as the work in question is an essential part of that point, it is protected speech.

Look at the 2LiveCrew case (which is Supreme Court precedent) -- the band didn't make a song making fun of Roy Orbison; they made a song making fun of a pretty woman. To make this point it was essential to use the lyrics of the song. Where Orbison had created a certain notion of the pretty woman, the 2livecrew created a different notion, and the contrast between the new song and the old song was very much part of their point. One can easily say the same about this land is your land.

Finally I would add that I think this whole distinction is specious. The First Amendment does not protect your right to make a point in the most effective way possible; it protects your right to make a point. In this particular case the point being made is core political speech, which would give it even more protection. There is a first amendment defense in copyright cases quite apart from the definition of fair use and I think this would be a strong use of one.

Re:I hope they win

[phats garage]

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 ;-)

One more issue

[commodoresloat]

The following is a quote from the Campbell v. Acuff-Rose case (again, Supreme Court precedent):

"A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. if a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original..., it is more incumbent on one claiming fair use to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the extent to which it borrows from the original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use..."

In other words, the Supreme Court does not at all indicate that just because "parody" is protected, somehow "satire" is not. In the above, the issue is the risk of market substitution -- if people start watching jib jab instead of listening to Guthrie, they might have a case. Frankly, I think this really renders the federal decision in the Seuss case especially problematic.

Bottom line: the purpose of letting copyright holder's sue when others use their works is to protect the copyright holder's right to reap the fruits of their labor. It is not to give the copyright holder veto power over messages they don't like.

Re:One more issue

[shadowbearer]

Mod parent into the stratosphere.

Very well put, especially your final point, which I think is really the reason why this whole snafu started in the first place:

It is not to give the copyright holder veto power over messages they don't like.

I don't know about anyone else, but I think the motive of the Richmond Organization here is pretty clear, and it sure as h*** isn't about copyright enforcement. (It's either that or their lawyers haven't done their homework.)

SB

You miss the point

[Yo_mama]

Putting it up on Freenet does NOT solve the problem the same way shooting a malnourished kid doesn't solve starvation. You don't solve the underlying issue.

The point is, we shouldn't *HAVE* to use freenet!

whatever

[asscroft]

We used to sing this song with jacked up lyrics back in grade school. The copyright owners can kiss my ass, I'm gonna sing this "illicit version" from now on, until I die, just cause they pissed me off with this lawsuit threat.

This land is my land,
It isn't your land,
I've got a shotgun
And you don't got one.
If you don't get off,
I'll blow your head off.
This land is private proper-teeee.

Or maybe this.

This song is our song,
It isn't your song,
It wasn't intended
to have an owner
I don't care if you own it
That doesn't mean you control it
this song was made for you and me

"This Song We Sing For You and Me"

[davidwr]

Tune: "This Land Was Made For You And Me"
Tune (c) 1940, Woodie Guthrie
As of 2004, the rights to Guthrie's tune are administered by The Richmond Organization, located in New York, NY.

The following is a parody of the dispute between The Richmond Organization and Evan and Gregg Spiridellis of Jibjab.com surrounding JibJab's 2004 hit "This Land," which parodies the US Presidential Race between Republican candidate George W. Bush and Democratic candidate John Kerry and which uses Guthrie's tune "This Land Is Made For You and Me."

"This Song We Sing For You and Me"
Lyrics by David W. Richardson

Chorus:
This song is your song, this song is my song,
From A. P. Carter, to his "Little Darling,"
From the Babtist Hymnal, to the "Lovin' Brother,"
This song we sing for you and me.

A man named Guthrie, he had a vision.
He wrote a folk song, and shared it with us.
He sang a tune that was familiar, thinking
"This song I sing for you and me."
(Chorus)

Two men named Evan and Gregg Spiridellis
Sat down to write a song about Bush and Kerry.
They borrowed music, from Woodie thinking
"This song, he sang for you and me."
(Chorus)

"Stop!" said the Richmond Organization.
They own the rights to Guthrie's music.
Evan and Gregg, they called it humor, saying
"This song, we sing for you and me."
(Chorus)

The two famous brothers, they filed a lawsuit
To preserve our rights to use Guthrie's work.
The judge will say that it is okay, saying
"This song, you sing for you and me."
(Chorus)

But it may happen that they lose and then their song will die....
Since this can happen, I put pen to paper
And write these lyrics, daring them to sue me, for
"This song, I write for you and me."
(Chorus)

These lyrics are copyright (c) 2004 David Richardson (davidwr.geo -at- yahoo.com), posted to Slashdot.org under the Creative Common License Attribution-NonCommercial 2.0, as found on http://creativecommons.org/licenses/by-nc/2.0/.
P ublication date: July 31, 2004, on Slashdot.org
Slashdot.org is not responsible for the content of this post.

Sources:
John Dowdell's commentary on this issue
Woodie Guthrie Lyrics