Previously: This Use is Fair Use
Wired News: Sue You: This Song Is Our Song
As far as money is concerned, JibJab hasn’t made much from the popularity of This Land. Spiridellis said the company made about $1,000 from donations in the past week — an option that’s come and gone from the site before. Pitted against an estimated $20,000 in recent Web-hosting costs, it would appear This Land has cost JibJab about $19,000.
Reason: Jabbing JibJab
Nothing says more about the awful state of copyright law today than the fact that this threat actually carries some legal weight. In the 1997 case Dr. Seuss Enterprises v. Penguin Books, the Ninth Circuit of the U.S. Court of Appeals ruled that The Cat NOT in the Hat!, a book by “Dr. Juice” that recounted the O.J. Simpson trial in the style of The Cat in the Hat, violated the Seuss estate’s copyright. Ordinarily the fair use doctrine permits parody, but in this case the court was unmoved: This was a satire, it ruled, not a parody. A parody would be a commentary on the Seuss book, it explained, whereas this borrowed Seuss’s creation to mock something completely different. The obvious retort—that it was a parody of both—didn’t carry any water.
Eugene Volokh: JibJab SoSue
The copyright owners have a pretty good case. If JibJab were making fun of the song, then the cartoon would likely be a fair use. But JibJab seems to be just using the song to make fun of Bush and Kerry, rather than making much of a comment about the song itself — that makes the fair use defense much weaker.
EFF has taken JibJab on as a client
Rather than addressing JibJab’s free speech and fair use rights, Ludlow’s lawyers have now sent threat letters to JibJab’s hosting provider, AtomFilms, as well as to AtomFilm’s upstream provider — evidently in an effort to get “This Land” censored right off the Internet.
Ludlow Music’s demand letter to Jibjab: Re: JibJab Media Unauthorized Use of ‘This Land is Your Land’
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 experience with this country. The Unauthorized Movie does not comment on those themes.
Jibjab (EFF) reply to Ludlow: Re: Jib Jab Media, Inc. and Ludlow Music, Inc.
Jib Jab’s parody addresses, among other things, the lack of national unity that characterizes our current political climate (ending with te 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.
The Importance Of: EFF Defends JibJab Animation as Parody
Fred von Lohmann learns that Ludlow may not have a defensible copyright on the music: Props to The Carter Family
Turns out Woody Guthrie lifted the melody of “This Land is Your Land” essentially note-for-note from “When the World’s on Fire,” a song recorded by country/bluegrass legends, The Carter Family, ten years before Guthrie wrote his classic song.
See also Salon.com: Class politics, JibJab-style
