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JibJab Wins - 'This Land' is Public Domain
The Importance of writes "JibJab, creators of the hilarious parody of Woody Guthrie's 'This Land is Your Land' featuring Pres. Bush and Sen. Kerry, were first threatened with a lawsuit and then, with the help of EFF, went to court first in a pre-emptive strike. Well, EFF discovered that the song has actually been in the public domain since 1973 because it was first published in a songbook [PDF] in 1945 and the copyright was never renewed. The case has now been settled. Here are some addtional links."
I thought that no matter what parody was protected regardless of copyright? Isn't that how Weird Al operates?
Nope, Al's lawyer ask for permission first.
You can't take the sky from me...
According to his site, Weird Al always gets permission first, though it's characterised as a notification:
"Q. Does Al get permission to do his parodies?
A. Al does get permission from the original writers of the songs that he parodies. While the law supports his ability to parody without permission, he feels it's important to maintain the relationships that he's built with artists and writers over the years. Plus, Al wants to make sure that he gets his songwriter credit (as writer of new lyrics) as well as his rightful share of the royalties."
But what is the SIGnificance?
Parodies make fun of the song, satire uses the song to make fun of something else.
Parodies are protected speech, satire is not, that's why there was a lawsuit.
Weird Al claimed that there was a miscommunication and that he thought he got permission.
"Never attribute to malice that which can be adequately explained by stupidity." -- Hanlon's Razor
Patriotic huh?
Chorus
As I was walkin' - I saw a sign there
And that sign said - no tress passin'
But on the other side
Now that side was made for you and me!
Chorus
In the squares of the city - In the shadow of the steeple
Near the relief office - I see my people
And some are grumblin' and some are wonderin'
If this land's still made for you and me.
My beliefs do not require that you agree with them.
The lawyers do ask, but they don't have to. It's a matter of courtesy more than anything else.
There's at least one instance, "Amish Paradise", where the original artist (Coolio) denied permission and Weird Al went ahead with it anyway. As it turns out, several Amish communities were also horribly offended by the song, but it's against their beliefs to sue him, so they haven't done anything about it.
Ludlow believes its copyright -- initially filed in 1956 and renewed in 1984 -- remains valid and disputes EFF's claims.
This never made it to court, so it's likely that a Judge would have to make that kind of determination. Ludlow may have backed down for just this very concern for all we know.
This is not only great news for This Land is Your Land lovers, but for lovers of all of Woody's music, because the same case will apply to any other of Woody's songs that Ludlow failed to renew.
Time to do some research people.
I hate to place a fly in the ointment though, especially in public where Ludlow's lawyers might see it, but the Sonny Bono Copyright Act extended copyright retroactively, including onto those titles that had already fallen into the public domain. This has been a real pain to online publishers of public domain works, many of whom have withdrawn certain titles that were clearly in the public domain when they first posted them.
To my knowledge this portion of the act has never actually been tested in court though, and still hasn't since this issue was resolved by the withdrawl of the complaint. They are free to remake it for some decades.
In this case though we still have Woody's own grant of public rights on first publication. I wonder if that didn't influence Ludlow's action, since going to court over the issue would inevitably bring that up. They may wish to avoid a judicial ruling on that score.
KFG
Parody is protected because you are making fun OF THE SONG.
From Dictionary.com:
A literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.
It doesn't say it has to make fun of the song, only imitate the style and be funny, sarcastic, or ironic. Not that dictionary.com is the end all resource.
Satire is NOT protected because you are using someones song for an alternate purpose.
Again from dictionary.com:
A literary work in which human vice or folly is attacked through irony, derision, or wit.
It seems that satire doesn't involve imitation at all. Political satire is a longstanding tradition in both British and American literature, and more recently in cartoons. South Park, for example, is often a satire but not a parody. When they show the Vatican worshiping a spider queen, that's satire, not parody. Satire doesn't have to be protected under copyright because it doesn't have to be derivative. Parody is a case where you take someone else's style and use it to be funny, maybe make fun of the author or the song, maybe make fun of something else. It has to be protected because normally that would be considered plagiarism. The whole point is that it is obviously, intentionally deriviative and they are using the fact of imitation to produce either humor or ridicule.
I submitted this story last night, and it didn't get posted.
Instead of liberating lots of songs for this sort of use, they got the company to agree to let JibJab continue to use the song. If you read the article you would know that the company disputes that copyright has expired, so the song has not been liberated and other "infringers" could still be sued. This hasn't prevented anything in the future.
So yes, JibJab is fine now, but that is all that has happened.
Lasers Controlled Games!
Citation: WoodyGuthrie.com
The song itself is all about the value of the country and how it should be shared by all of us.
The version that I (and most of the people that I know) learned in school goes:
That is the version as it was first recorded at guthrie's last commercial session. Interestingly enough there is a missing verse that shows up in a few rare recordings that appear in the Library of Congress. It states:
This shows up in a recording that Woodie made that is now part of the Smithsonian Folkways recordings (see here and Here).
I can't think of a more appropriate response to this than that.
You can see more info:
IMHO whoever claims to "own" this is as sick as the people who claim to "own" the image of Martin Luther King as property. See the commentrary at the internet archive: here.
So the wayback machine won't get /dotted.
... " the voice said. I glanced up, and saw Martin Luther King Jr. delivering his most famous speech, given at the Lincoln Memorial during the March on Washington.
... you must first connect."
The promised land goes condo
March 30, 2001
BY ROGER EBERT
The voice from the television set was measured and familiar, the cadence one that has been engraved on my memory.
"I have a dream
It was a camera angle I hadn't seen before. And, oddly, he wasn't flanked by other civil rights leaders, but was standing all by himself. As his words continued, the camera's point of view circled to look out over his head and down the Mall, which was completely empty.
CGI, I thought. Computer-generated imagery. Then the tag line came on. It was a commercial for Alcatel, a company involved in communications networks and cell phones. An Alcatel newspaper ad with the same image spells out the message: "Before you can inspire
Via Alcatel, of course.
I was filled with anger and sadness.
Not this speech, I thought. Not this moment in American history.
Ads have exploited almost every image worth quoting in our society. United Airlines has made it impossible for anyone to ever again hear Gershwin's "Rhapsody in Blue" without thinking about airplanes. Fred Astaire, the most graceful dancer in movie history, was seen dancing with a Dust-Buster. Such ads are pathetic, yes, but I suppose the copyright owners have a legal right to license them, and if their estates have no regard for the reputation of Gershwin or Astaire, well, that's greed for you.
But surely there are a few moments too sacred, too special, to be bought and sold. I would have thought Dr. King's "I Have a Dream" speech was one of them.
It shines like a beacon in our history. It belongs to all of us. It does not belong to Alcatel, which should not have the temerity and insensitivity to use it in an ad. And in a way, it doesn't belong to the King estate, either. The estate should consider itself the protector of this speech, not its retailer.
Perhaps, I thought, the speech was somehow in the public domain, and Alcatel had ripped it off to sell its networks and cell phones. I called the Martin Luther King Center in Atlanta and spoke with Robert Vickers, its public relations spokesman.
"I am afraid you will have to fax me your questions in writing," he said.
"I have only one question," I said. "Did the King Center license the Alcatel TV commercial?"
"Yes," he said. "It was licensed by the King estate's Intellectual Properties Management."
"Have you had a lot of calls about the ad?" I asked.
"Yes," he said, "comments both ways."
I started to ask how much the speech sold for, but he told me about the fax again. I didn't much feel like sending the fax. I knew the price.
Thirty pieces of silver.
Copyright © Chicago Sun-Times Inc.
Parody is protected. However, this is the same thing that happened with Penny Arcade and American Greetings, Inc. (or whoever) a while ago. Penny Arcade parodied the likeness of some character to satirize Todd McFarlane (I think). So it wasn't a parody of said character, but a satire of Todd McFarlane.
Likewise, JibJab used "This Land is Our Land" to satirize President Bush and Senator Kerry. If they had wrote a song that was merely a parody of "This Land is Our Land" then they would have been fine and it would have been protected. However, they used the song for other purposes, not covered under the provisions that protect parody.
Fortunately, the song was in the public domain and hence the restrictions didn't apply.
CD Baby has a guide on how to do a cover song in the US:
: //www.mcps.co.uk/
http://www.cdbaby.net/dd?f=8
It's slightly different here in the UK (and slightly easier as it's a single "clearing-house"), you'll need to get in touch with the Mechanical Copyright Protection Society (MCPS) and probably the Performing Rights Society:
http://www.prs.co.uk/soundadvice/
http
For specific advice on doing a cover, see the FAQ (question 9) here:
http://www.mcps.co.uk/productlicensing/
Note that when you publicly perform a cover you'll need a Public Entertainment Licence (PEL) and a PRS licence.
If you're an artist/band then I'ld recommend joining/registering with both the MCPS & PRS, it doesn't cost much (if anything) and means that you're work is protected and you'll get paid for things like radio play, so it's well worth it. They also give you a load of advice and are really helpful in general.
The point is about fair use. It is considered fair use (no permission needed, though mechanical royalties may have to be paid) to parody the original song. It is not considered fair use to use the original song to satirize something *other* than the original song, and therefore permission can legally be denied by the author of the song (or assignees).
This should come as good news to the Girl Scouts of America, who in 1996 stopped singing "This Land is Your Land" at campfire events along with all other copyrighted music, at least officially.
I wish that my inferiority complex were as good as yours.
-RenderHead