July 27, 2004  ·  Lessig

Everyone’s seen the brilliant JibJab Flash of Bush/Kerry. The piece claims to be a “parody” of Woody Guthrie’s “This Land.”

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. (For the now classic case on this, see Dr. Suess v. Penguin Press, where a “parody” of O.J. Simpson using The Cat in the Hat was not “fair use.”)

Guthrie’s publisher’s lawyers too recognize this. As CNN’s Allen Wastler reports, Guthrie’s publisher is now threatening JibJab.

What’s great about this story, of course, is the levels of hypocrisy. Guthrie was not much for property rights himself. It’s said that there is a not-often-sung verse:

As I went walking, I saw a sign there;
And on the sign there, It said, ‘NO TRESPASSING.’
But on the other side, It didn’t say nothing.
That side was made for you and me!

But whether Guthrie believed in property rights or not, the key thing this story should do is force us to ask generally: Does a law that makes a political parody such as Jibjab illegal (even if it is not a “parody” in the copyright view of the world) make sense?

(Note to citizens: We’re permitted to change the law.)

(Thanks to Paul Puglia!)
(UPDATE: Ernie says I’m wrong.)

  • Tim

    It’s a real verse, and not so uncommon; Woody’s son Arlo tends to sing it when playing the song. It can be heard on the album Precious Friend, and probably elsewhere.

  • Bryan Young

    If the parody wasn’t directed towards the song, it seems like they should have to pay royalties on the song (like anyone else). If they didn’t then wouldn’t any comedy be exempt from property right laws? I would hate to think that ‘Dumb and Dumber’ wouldn’t have to pay for their soundtrack, while ‘Shawshank Redemption’ would have to pay for theirs. If I’m missing something here (which I very well could be), please fill me in.

  • Bob

    This is not particularly germane to the copyright question, but I think it’s worth pointing out that this parody is not really making fun of “the candidates” — it’s making fun of one candidate, John Kerry.

    Kerry is portrayed in many degrading costumes, while Bush always wears a suit or military fatigues; Bush makes many cutting attacks, while Kerry repeats the “brain” and “three purple hearts” point over and over in a way that only undercuts their force. If you didn’t notice this the first time, watch it again.

    I’ve been very surprised at the degree to which people who are not Bush partisans discuss this cartoon somewhat neutrally, as though it were making fun of “the candidates.” Are we so easily fooled by a few musical suggestions of “fair and balanced” back-and-forth? This is a Bush partisan ad.

  • tc

    Maybe Kerry doesn’t need to say anything because we already know what a putz Bush is?

  • Kaosian

    Someone was saying that bush is always portraied in a suit or fatigues. What about the armor, or the cowboy outfits. The idea is bush is a warmonger. Besides the whole scene where bush is talking about kerry having more flip flops than a pancake house. It funny b/c Bush is in front of a waffle house, which is making fun of him in the same instance and his public speaking screw-ups. Besides Bu sh is several time refered to as dumb(mass uh chew sits, and kerry calling him dumb several times). Also the fact that the Native American is in there saying this was his land and now its our land….

  • Knightshade

    If a person thinks that the flash animation is partisan towards one side or the other, it really reveals how partisan that person is.

    “WAH! Making fun of my candidate is BAD!!! WAH!”

    I’m probably voting for Kerry, BTW.

  • http://home.telepath.com/~hrothgar/astro_goofs.html Timothy Phillips

    In the version I have always heard (including Arlo’s) the words on the sign are “private property”, not “no trespassing”. Lawrence’s version: the folk process at work ?

    I have more to say on Woody, Arlo, and the folk process at

    http://home.telepath.com/~hrothgar/ttarchive2003.html#20030726

  • Kaosian

    What implications does this have on the suppposed copyright

    “Woody Guthrie’s copyright notice
    “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.”

  • Stroker Ace

    Just because he made an announcement about his intentions of copyright, doesn’t necessarily mean it is legally binding.

    If he was the saint he portrays himself as, he would’ve specifically negotiated that when he sold the copyright.

    But then he wouldn’t have gotten as much $$$.

  • Kimberly Lazarski

    How does one rescind a copyright once a product is released?

    This is akin to SCO’s distributing the “infringing” SCO code in Linux as part of SCO Linux under the GNU license, and then attempting to rescind that license by blaming IBM and others who also contributed to Linux, and changing the copyright and license terms AFTER initial release.

    Sorry, it was released under a lax copyright to begin with (do what you dern well please wit’ mah song) and that cannot be rescinded.

  • Joe

    If he wrote that notice while holding the copyright then that’s promissory estoppel, right? And any successors in interest would also be bound by the promise.

  • http://slashdot.org/~pudge/journal pudge

    If 2 Live Crew’s “Horny Woman” is protected parody, then this is too. Was Luther Campbell attempting to make a point about Roy Orbison? No, he was modifying the song “Pretty Woman” to make a (stupid) statement regarding the ideas presented in the original song …

    … which is precisely what JibJab is doing here.

    SCOTUS held in the previous case (which the Seuss case references) that “The heart of any parodist’s claim to quote from existing material is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s work.” This is not as Mr. Lessig describes above, that the goal of parody is to make fun of the original artist, but to comment on the original work, which JibJab does, quite clearly.

    Some might not see how clear this is, but the meaning of the original work shows us: it is about how this land belongs to all of us, and this song is about how those in power are selfishly trying to make the country work for them instead. It’s not (negatively) criticizing the work, but the key word is that parody should *comment* on, not necessarily criticize, the original work.

  • http://collopy.net/ Peter Collopy

    I keep seeing the verse you’ve quoted and can’t find an original source for it, but both a Guthrie manuscript and a Guthrie recording of this one actually exist:

    Was a big high wall there that tried to stop me
    A sign was painted, said: Private Property
    But on the back side it didn’t say nothing
    This land was made for you and me

    I’ve written more along these lines on my blog, though the parody issue is apparently more complex than I thought.

  • Nate

    I’ve been laughing for years at the ignorance of politicians who use this song at their rallies. Republicans in particular are idiots if they use this song, for the song actually repudiates everything they believe in. But since almost no one knows the full lyrics, ignorance leads people to use the song anyway, causing those who do know the lyrics to laugh their heads off.

  • http://infinitejest.org Ted M

    (1) Woody can be heard singing the “private property” verse on the Smithsonian Folkways release, “This Land Is Your Land: The Asch Recordings, Vol. 1“. It’s track #14.

    (2) The irony of the Native American singing “This land was my land,” with the response line, “But now it’s our land,” is sharp and poignant commentary on the original. It’s an angle I’ve thought of when hearing Woody’s song for many, many years.

  • Anonymous

    I think that by having the Native American there, it is actually targeting the song…. which would make it parody as well.

  • http://www.uncoveror.com Matthew Brown

    This threat to sue is a clear example of copyright as censorship. Maybe “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” can justify some temporary censorship, but not muzzling Jib Jab. It is a shame this did not happen before Eldred Vs. Ashcroft. Maybe more justices would have agreed with Breyer and Stevens.

  • Bilge

    A pity that the “framer’s intent” crowd are mute about copyright. Because originally, copyright was only for 14 years. Now, no work ever produced in my lifetime will enter the public domain before I die.

    How much better would the world be if the public domain was actually allowed to take ownership of works that the public has already paid for? We’d have a culture that was actually ours, instead of locked up in perpetuity by corporate monoliths. We’d have more The Wind Done Gone and less Family Circus.

  • http://grep.law.harvard.edu M. Danielson

    Pudge, above, is dead on. Lessig’s analysis is imply incorrect and his cite is inapposite. The 2 live crew case is directly on point (and the penguin case is not nearly so close, being an entirely different medium). Ernest’s analysis is ultimately an extension of this simple point, but I’m surprised others have not simply said: 2 Live Crew applies, end of story.

  • http://www.lawhacker.com Andrew Greenberg

    Well, I would agree with the professor at first glance. If “Cat Not in the Hat” is good law, this really is a pretty clear taking from the song to comment on something else, as opposed to a commentary on the work itself.

    However, it would appear that the copyright owners disagree. Their complaint, according to this piece from techdirt, is that the jibjab work puts an inappropriate “spin” on Woodie’s beautiful tune.

    That would be the losing argument, because it is precisely the point raised by the Orbison estate. The “spin” put on “O Pretty Woman” was far uglier and worse than anything in jibjab, but was held by the court to be clearly protectible parody.

    So, they can’t have it both ways. If this has the song a-spinning, then it is pretty clearly fair use. If they are arguing that it is a mere misappropriation, without the loaded argument, then we can talk cat not in the hat.

  • http://www.lawhacker.com Andrew Greenberg
  • Mark

    I’m not a lawyer, but Ernie’s argument that satire can be parody reminds me of the old efforts to deduce the death of Paul McCartney from various Beatle album covers and song tracks (by turining them upside down, playing them backwards, etc.). He seems to be trying to find parody in these cases regardless of the original intent of the creators.

  • John Mann

    A comment by “Bilge” struck a chord with me: “Now, no work ever produced in my lifetime will enter the public domain before I die.”
    So for me too, no work ever produced in my lifetime will enter the public domain before I die.
    No work produced in your lifetime will enter the public domain before you die.
    No work produced in anyone’s lifetime will enter the public domain before they die.
    So, no-one will be able to read/hear/see something just created, and think “later, I will be able to re-use it in my own creation”. No, we can only re-use things that had already been created at the time we were born!
    Assume a new generation (Depression, Baby-boom, X, …) of people are born every 25 to 30 years. Then the cycle-time of copyright is about 3 generations of people. The culture of my grandfather will be available to my children. My parents -> my grandchildren. Me -> my great-grandchildren. But over the last century or so, each generation is very different from all the others — will they appreciate/use the culture from 3 generations ago?
    Governments/corporations/laws may be perpetual, but people are not.

  • http://serial.heinous.net/~bbs/ Bud Fields

    I blow goats, so I know something about things that suck.

    Guthrie’s work belongs to everyone. If anything, it’s the propety itself which is theft, just like those farmers that keep on chasing me off of their property. (Those goats were made for you and me.)

    When the ruling comes down affirming the JibJab folks, the taste will be as sweet as a young pygmy goat’s first load.

  • Christopher R. Bowman

    Why must a work be satire or parody? I reocgnize the satire immediately obvious in the JibJab work. But I also think it is a parody of the song. The concept of togetherness espoused in the song is equally clearly being mocked by JibJab and that makes it commentary on the song.

    Further it would seem that in this case the Copyright claus would conflict directly with the First Amendment. I was always given to understand that the text that more directly deals with a subject would be controlling. How does one make that determination in this context?

  • http://www.bcgreen.com Stephen Samuel

    Pretty much nothing ever created by anybody living today is going to enter the public domain before the vast majority of people reading this die. It’s life + 75 years, at last reading. This means that, if the creator of a 50 year old song were to die today, I’d have to live another 75 years to see it in the public domain (presuming that Congress doesn’t go on another extension spree).

    Many of the 10 year olds reading this site can hope to reach 85, but those of us who are 20 years old and above would be lucky to make it to the ripe old age of 95 and up