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This Land Was Made for You to Sue

Well, you have to be living in a cave if you haven’t seen this yet, and if you’re living in a cave, you’re probably not going to be reading this site. Nevertheless, just in case you’re the last souls in the country to miss this, you definitely have to check out JibJab’s absolutely hilarious parody of Dubya and Kerry to the tune of the late Woody Guthrie’s “This Land Is Your Land.” If you haven’t seen it, check it out. You’ll enjoy it no matter which side of the aisle you’re on.

Of course, this being America, the copyright owner of “This Land Is Your Land” (The Richmond Organization) is suing JibJab, and according to Eugene Volokh, they have a strong case.

Volokh followed this up with a whole series of posts on the topic. He doesn’t seem to have a roundup of them all, so let me take the liberty to do so here (Matthew Hoy has a mini-roundup of his own, but I think mine will be useful as well):

1. The above post, pointing out that the song is parodying Dubya and Kerry, not the song itself, and thus the copyright owners seem to have the better case.
2. Says to blame the law, not the lawyers.
3. Elaborates on the distinction of mocking the original work vs. using it to mock others, citing the Supreme Court’s argument.
4. Points out that it’s not fair use just because it doesn’t harm the market for the original work, again citing the Supreme Court.
5. Lists the remedies that the copyright owner can pursue, which are not limited to the actual damages.
6. Makes a legal argument on how Woody’s own stance on copyrights wouldn’t apply, because the renewal of the copyright would be free of any alterations applied to the original copyright.
7. Passes on the observation from EFF’s Deep Links that Woody Guthrie himself lifted the tune, as was pretty common in folk tradition, and this greatly helps JibJab’s defense.
8. And lastly, says that JibJab’s song is not considered a cover for legal purposes, since it fails to satisfy several requirements.

Ernest Miller, on the other hand, argues that it is a parody mocking the original:

JibJab’s wonderful parody undermines virtually every element of the original meaning of Guthrie’s song. Where Guthrie’s song is provocative understatement, JibJab’s is merely provocative. Where Guthrie’s song is one of unity, JibJab’s version both mocks and ultimately supports that ideal. In a year in which the red/blue divide is frequently debated, Guthrie’s call for unity would seem to be ripe for this sort of parody. Guthrie was a supporter of communism, but his America has become consumerist (which JibJab notes perfectly). Guthrie sang songs to raise political consciousness, JibJab mocks political consciousness.

I think the unity point is the most convincing one. The original says this land is yours and mine, but the JibJab version was more along the lines of this land is mine and that land is yours (and in hilarious fashion).

Anyway, I have no idea how the case will turn out, so I’ll leave that discussion to the legal experts. Indeed, I don’t think the big point here is what the current copyright law does and doesn’t allow. I think the point is that copyright law as it is sucks ass.

Dan Gillmor explains:

Guthrie wanted credit for what he wrote, but he had contempt for severe legal restrictions on what others might do with it. According to Pete Seeger, in this account (widely acknowledged in the folk world to be true) from the Museum of Musical Instruments, when Guthrie was singing on the radio in Los Angeles during the Depression, he’d mail mimeographed songs to listeners, and wrote on one:

“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.”

I’ll bet, therefore, that Woody would be horrified — and angered — by the behavior of… The Richmond Organization….

The Richmond Organization is dishonoring Woody Guthrie’s memory, not that it seems to care. But it’s giving us one more example of how the copyright system has abandoned common sense.

Although Volokh had a legal response to this (#6 above), the main point isn’t whether or not the Richmond Company has a legal case. The point is that the law as it stands is stupid.

After all, the whole point of copyright law is to protect authors, not publishers, the idea being that creative types wouldn’t create as much stuff if their works could be freely copied. It’s a similar rationale behind patent laws rewarding inventors. The government is trying to artificially boost creativity by awarding temporary monopolies (something that most libertarians already oppose), creating an extra incentive to create.

But publishers don’t create anything; they’re little more than middlemen.

And via Tim Wu guest-blogging at the Lessig Blog, Mark Frauenfelder at Boing Boing points out that the Guthrie family is actually totally cool with the parody. Cathy herself says:

I can speak for myself and my immediate family including my Dad, that we all love it! We’ve all seen it and passed it along to our friends and family.

That the publisher doesn’t see it this way is a pretty good indication that the law is not operating as intended. Indeed, publishers’ interests are often opposed to those of both the public and the artists. As Tim Wu notes, “The present tension between consumers and copyright is predated by a centuries-old war between publishers and authors.”

A law intended to boost creativity thus ends up stifling it, resulting in publishers clamping down on artists using each other’s works. Indeed, copyrights don’t serve any purpose in motivating publishers to do anything other than sue artists and consumers — and lobby the government to extend the duration of copyrights so that they can continue to make money on the same old things.

Indeed, this is exactly what happened when corporations lobbied in favor of the Sonny Bono Copyright Term Extension Act of 1988, signed into law by Clinton (what was he smoking?), without which, Woody Guthrie’s song would have passed into the public domain by now. This law was clearly against the public’s best interest, but when it comes to lobbying, the good of the many has never been a match for the money of a few (yes, I’m a big proponent of campaign finance reform). Disney was the big booster in this case, since the copyright for Mickey Mouse was about to expire, and no doubt they’ll lobby to have copyright terms extended again in another twenty years, ignoring the irony that they’re probably the company that has profited the most from material in the public domain.

Yet another example of why corporations should not be allowed to influence the government.

I’d go on and talk about DRM, but then this’d become one of those posts that I never finish. So instead, just go read Cory Doctorow’s excellent talk to Microsoft about how DRM is very, very bad. It’s a lot more insightful than anything I ever say, anyway.

Update 8/12/04

Rich Thomas quotes Sandra Day O’Connor:

The primary objective of copyright is not to reward the labour of authors, but [t]o promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.

Update 9/27/04

Sheesh, I meant to update this last month. Anyway, in case you’re still living in a cave and don’t know this, JibJab won! Via Slashdot, EFF discovered that “This Land Is Your Land” is in the public domain because the copyright holders failed to renew the copyright the first time it came up, and thus it expired in 1973. So the parties promptly settled out of court. Via Volokh, see also the Wired article on the subject.

A fortunate turn of events, to be sure, but the good guys might not win the next time. Copyright law still needs to be fixed, and Alex Tabarrok proposes an interesting compromise solution: copyright renewal fees.

A renewal system should be politically viable because the fees can be made low enough so as not to greatly concern Disney or RCA, yet high enough so that most works will flow to the public domain. Owners of profitable works will benefit and owners of non-profitable works will not be harmed.

Richard Posner also voices support for it. Disney gets to keep Mickey, but due to their political clout, that was going to happen anyway, so this sounds pretty reasonable to me.