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Wherefore Thou Art # 18

Unless you’ve been living under a rock for the last couple of months, you’ve at least heard about the very, very funny animated short film from the website JimJab that features George W. Bush and John Kerry singing a bastardized version of the Woody Guthrie classic “This Land is Your Land.” The work is not only genuinely hilarious, but unique this election year in its evenhandedness in making both candidates look stupid, although the incumbent needs no help in that regard.

As of this writing, the four-minute opus has been downloaded over 30 million times, and the JimJab creators have been on the Tonight Show and NPR, and have been written about by the major wire services.

The film was an instant success, huge on that instantaneous and strange scale that only the Internet makes possible. At 20 million hits, JimJab had supposedly made less than $1000 in voluntary payments from happy viewers of This Land; at some point after that, one clicking onto the site had to negotiate a pop up advertisement, which presumably brought in a bit more money. Safe to say this was nobody’s profit center.

Then one of those bizarre things happened, the sort of thing that just wouldn’t ever happen in a just world, the sort of thing that is the consequence of the confluence of lawyers, intellectual property laws, and money (or at least success, which bears the suggestion of money).

JimJab got a cease and desist letter. Turns out a publishing company called The Richmond Organization owns the rights to This Land is Your Land, and also must be comprised of the only humans on the planet who don’t find the work funny, if it is indeed comprised of humans at all. The letter is one of those sad and classic Angry Lawyer Letters, taking about registrations, assignments, accountings, litigation, full of foregoings and heretofores and to wits. Perhaps even worse than this, The Richmond Organization has threatened JibJab’s Internet providers with lawsuits in a pathetic attempt to get the work censored.

Of course this came as a surprise to JimJab. They’ve been doing things like this for over five years, albeit with much more modest success, and nobody’s ever bothered them for using a copyrighted song. In any event, JimJab has enlisted the help of the Electronic Freedom Foundation, a group that is usually at the forefront of issues where the little guys get squeezed on information ownership and use issues. The EFF and JimJab are going to win.

Maybe, just maybe, this is because JimJab’s works are parodies, and parodies are protected by the fair use doctrine of Copyright Law as interpreted by the Supreme Court in the 1994 case Campbell v. Acuff-Rose. This decision, about a mediocre hip-hop version of Roy Orbison’s “Oh, Pretty Woman,” stated that parodies were protected speech, beyond the reach of the copyright owner of the thing being parodied. The decision also made clear that the parody did not have to be the predominant thrust of the new work – only that some parodic intent can be “reasonably perceived.”

The Richmond Organization attorney claimed in an interview that the JimJab work wasn’t a parody This Land is Your Land, which may be true in the narrowest sense, because the main thrust of the JimJab work is to make fun of the presidential candidates. But as the Richmond Organization attorney knows, that’s not the issue. The issue, according to the Campbell case, is does the JimJab case parody the Woody Guthrie song in a perceptible way? And of course it does. The opportunity to play around with the meaning and iconography of Woody’s song is why JimJab chose Woody’s song as opposed to, say, a song by The Hives. Suffice it to say that the parodic content of This Land is considerably more apparent than that in 2 Live Crew’s asinine version of “Oh Pretty Woman,” which was the subject of the Acuff-Rose decision.

The Richmond Attorney also stated that the JimJab version takes more of the Guthrie song than necessary to make its point. Only an attorney who’s ignorant or who is getting paid loads by his corporate overlords to lie about the law could make this statement. As the Supreme Court stated in Acuff-Rose, for a parody to be effective, the “heart” of the parodied work generally has to be taken. In other words, there is a significantly wider berth given to parodies than in other types of fair use takings under the Copyright Act.

Perhaps saddest of all is the travesty all of this has occasioned on the Woody Guthrie legacy. The song was originally meant as a Marxist response to “God Bless America,” and the most incendiary verses Guthrie wrote are left out of the versions we all sang in elementary school. And this kind of heavy-handed corporate-clown posturing is exactly what Guthrie spent his life railing against. Here is a “copyright notice” Guthrie put on one of his songs: 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.

It’s a long, sad journey from that statement to a cease and desist letter from a $400 an hour attorney.

Postscript— Two weeks after I submitted this article, it was announced that JibJab’s attorneys discovered, after some resourceful digging at the Library of Congress, that “This Land” is in fact in the public domain. The Richmond Foundation’s claim of copyright in the song is invalid. Game over! This is a fine example of good lawyering, not to mention karmic balancing, and now we all can continue to enjoy JibJab’s work unfettered by unctuous suits. “This Land” is our song, it belongs to you and me, just the way Woody intended, after all.

© 2004 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.