This Use is Fair Use

Andrew Raff
July 26, 2004

CNN reports that Woody Guthrie's publisher is unhappy with the JibJab's animated take on "This Land is Your Land": Publisher peeved at political parody:

TRO believes that the Jibjab creation threatens to corrupt Guthrie's classic -- an icon of Americana -- by tying it to a political joke; upon hearing the music people would think about the yucks, not Guthrie's unifying message. The publisher wants Jibjab to stop distribution of the flash movie.
JibJab asserts that its use is a fair use.

Generally, a parody (a work which comments on the original) is considered fair use, while a satire (which comments on broad social trends, but not on the original work) is not a fair use. See e.g. Campbell v. Rose-Acuff and Suntrust v. Houghton Mifflin

Chris Cohen thinks that the video is satire, not parody:

The JibJab video would likely be considered satire, because the video does not directly target the original song. The clear target here is Bush and Kerry or politics/society in general. Also, if the video is a commercial use of the song, that will hurt JibJab's case.

Lawrence Lessig agrees with Cohen: on the meaning of “parody”:

As any copyright lawyer recognizes, it is not a “parody” in the sense that “fair use” ordinarily recognizes it. A “fair use” “parody” is a work that uses a work to make fun of the author. JibJab is using Guthrie’s work not to make fun of Guthrie, but of the candidates.

Not only does this animation comment on the public perceptions of the two candidates, but it shows how naive and marginalized Guthrie's vision of a united country is compared with modern political discourse. The animation parodies the original song by demonstrating what would result if the songwriter replaced Guthrie's idealism and hope with post-modern cynicism and rabid partisanship. The listener will think about Guthrie's unifying message and wonder if there is any place for such hope in politics today.

Ernest Miller also thinks that the JibJab use is a paradigmatic case of parody:

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.

The Blawg Channel's Marty Schwimmer would also find this to be fair use: My Two Cents on Jib Jab

The message of the original work is one of unity - the point of the parody in part is to illustrate the absence of unity at this time. As indicated in the 'Priceless' MasterCard case (where Nader not only commented on the two party system but on the values commercialized by MasterCard), commentary on the original work does not need to be at the primary reading of the parody. It can be so subtle as to be missed (by the plaintiff).

TechDirt notes that Guthrie took an expansive view of copyright: JibJab Threatened Over Use Of Woody Guthrie Song

Guthrie, after all, is the same singer who once put the following copyright notice on his work: "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."
Of course, Guthrie doesn't say "change it to create parody," but this is the type of parody which should be protected by Fair Use.

Joe Gratz thinks that "there might be more (or, depending on your perspective, less) to this case than the parody issue"

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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... [Read More]

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