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:
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.)