August 8, 2004  ·  Tim Wu

cathy guthrie.jpg
As Mark Frauenfelder and others have documented, the Guthrie family and probably Woody himself think the JibJab parody just fine. In the words of Grandaughter Cathy Guthrie (pictured here), “this parody was made for you and me.”

But here’s the thing: much of the JibJab Brouhaha was actually caused by a lack of author’s rights….

I’m not speaking heresay: the point is that who controls the rights can matter as much, if not more, than what the rights are. Here, its publisher “The Richmond Organization” (TRO) and not the family, who controls the rights to “This Land.” And Richmond’s reaction was the opposite of Cathy’s: “The damage to the song is huge,” said Kathryn Ostien, director of copyright licensing, because “this puts a completely different spin on the song.” (Why “different spin” = “huge damage” I’m not sure).

Yes, authors and creators can suffer fits of pique that can hurt the markets for secondary works. But their reasons for asserting copyright can be the subject of reasonable disagreement (example, colorized films). All that’s a peppercorn compared to the historic abuses of copyrights controlled by publishers and disseminators.

The present tension between consumers and copyright is predated by a centuries-old war between publishers and authors. Those who read this site ought think carefully about how often the public and authors are actually on the same side.

  • Branko Collin

    I am not sure why from a copyright perspective the opinions of the Guthrie heirs should be more important than those of the publisher. It’s perhaps ironic that the former side with JibJab, and perhaps not even that ironic, because the opinions of the heirs on such matters were known before.

    Copyright is lending out certain rights to the author by the public. Neither the heirs or the publishers are the author.

  • Tim_Myth

    “Copyright is lending out certain rights to the author by the public.” I don’t get that statement. Seems to me it should read, “Copyright is lending out certain rights BY the author TO the public.” When you view the issue this way you see that authors, not publishers, should have control of what is fair use. Then the opinions of his heirs makes sense because presumably they knew his intentions better than the publisher.

  • Mark Federman

    What seems to be confused in this issue is copyright vs. moral rights in the work. (I’m Canadian, so I don’t know whether the notion of moral rights works in the U.S.) Historically (as most already know) the rights in any creative work belonged to the sovereign. These were granted by the sovereign to the creator for his/her benefit for a limited time and then revert back (copyright term extensions notwithstanding) to the public. As we know, this copyright can be assigned, leased or sold, at least for the duration of its non-public license. However, moral rights in a work ALWAYS stay with the creator and his/her heirs, and this has to do with the intent of the work, so that any future use of the work does not violate the intent of the creator – for example, by using the work to misrepresent the beliefs of the creator.

    It seems to me as if the Guthrie family is attempting to defend their moral rights in This Land, as they do not own the copyright any longer. Thus (in Canada, at least) both the publisher and the Guthrie family are legitimate in their claims, acknowledging, of course, that the publisher’s claim has yet to be proven on the satire vs. parody argument.

  • dannyb

    >>�Copyright is lending out certain rights to the author by the public.� I don�t get that statement.

    This is precisely the basic point of the whole arguement. Please allow this untrained amateur his explanation:

    In a free and unregulated economy we can use any idea or information we encounter. I can copy the shape of your driveway if I like it, you can make the same eggs I served you at my house for brunch, etc. If you say or write something i think is cool, there is nothing keeping me from printing it and trying to sell it. If you don’t like it, you or your friends will have to come after me with a bat and talk me out of it, leading to new problems – maybe my friends are bigger.

    A few hundred years ago, protection – government regulation – for written works was codified into English law. If you could prove that you created some things, no one else could sell a copy of it without your permission for 17 years, and for another 11 if you asked for an extension (I should really look these numbers up, but I think they’re in the ballpark). If they did sell it, you didn’t have to worry about the size of your personal network, you had the backing of our government and police to enforce the distribution of your creation. The public gave you the opportunity to sell your idea exclusively for a limited time.

    We gave up the freedom or right to use an idea immediately presumably in order to reward and encourage the person who created it to make more. The benefit to the public to use ideas freely has always been known and highly valued. We’ve come a long sad way to a point where some feel that everything they can think of is their own personal and private property.

  • Brian Hurt

    Copyright isn’t property, and it isn’t a right. It’s priveleges granted BY society TO a creator to reward said creator for creating. It’s a goverment granted monopoly- which isn’t necessarily bad, as the water, power, and cable providers have goverment granted monopolies, and the phone company used to. But like all granted monopolies, it has limits. Fair use isn’t a privelege granted by the authors, it’s a right retained by we the people. In consitutional terms, fair use arises from the First Admendment.

    The reason we grant these priveleges, the reason copyright exists at all, is because we as a society want to encourage creativity- a laudable goal, IMHO. All discussion of how copyright should work should begin and end with “how does this encourage creativity?” Rewarding the publisher, at this point, does not encourage creativity as far as I see. Neither does rewarding the heirs. Woody Guthrie is, unfortunately, dead- he can no longer create new works of art.

    Another problem is that first admendment concerns are felt most keenly in cases where the speech is political speech. As it is here. When we allow copyright to be strengthened in the face of free speech, we weaken democracy.

    This is no trivial matter. The MPAA and RIAA are pushing to include DRM in every computer- to, in effect, make DRM-less computers illegal (consider the INDUCE act discussed elsewhere- your average PC with sound card is a device that enables copyright violations). Effectively all communication will be vetoable by the media companies, in a (vain) effort to eliminate copyright violations (piracy is something that happens on boats, dammit). This will have severe consequences for democracy. Freedom of the press only belongs to those who own one.

    We ignore the political aspect of this particular instance of “copyright violation” at our peril.


  • hungerburg

    the milk you drink, the eggs you eat, all are the product of the life functions of animals; in common sense, the peasant though, gets labelled PRODUCER; thats how the publishers see their role, as those who provide the authors with big loans and a nice living; and therefore get to own the products.

    the us constitution takes a different view: society as a whole is the frame, in which the creative works flourish; which is a very true point to make. and its society as a whole, aka. the public, that grants authors – in order to put an incentive to create – copyrights: which they then may sign away in their contracts with publishers.

    moral rights are to say, that authors are people and not to be treated like animals, and that people dont dwell on just bread/licence fees; there are some inalienable human rights to them because they receive as ART, what is a burden to others.

  • Rolo Timassie

    Unless you want to prevent authors from selling their works I’m not sure what the solution is to this alleged problem. Maybe the people who bought your house are jerks to your former neighbors, but that’s just the way it goes. On the other hand, maybe you were the jerk, and your neighbors are glad you sold the place. I fail to see how this particular episode involving JibJab is enlightening about anything as a general matter.

  • Michael Rader

    One ironic thing about this matter is that Woody Guthrie probably only wrote the words, but not the music, to “This Land..”
    The same melody is used for one of the Carter Family’s recordings, “When The World’s On Fire”, probably copyrighted by A.P. Carter. Prior to that it was recorded as “Rock of Ages” by Blind Willie Davis.
    It is most likely an African-American sacred song of origin. After starting this comment I found:, which discusses this at length.
    Rather than composing, AP Carter was what is known as a “song catcher”. Copyrighting songs from the public domain was quite common practice in the early days of the last century and there were probably also instances from the 1960s on.

  • Pat R.

    The principle of being human appears to be integral to the integrity of the process of copyright, for if the purpose of copyright regulations is to encourage work product, the theft of work product, or the potential for theft of work product will necessarily limit or decrease production.

    This is neither true for companies, unless acquisitioned for production, nor for the dead, who are unable to produce product.

    While copyright registration may appear to be the low cost solution of protection, replication by alteration is now a finely tuned art of appropriators that has been upheld by law in many cases. The registration of concepts or ideas falls into the same category, but perhaps not because of its inherent substance, but because ideas and concepts are easily appropriated by others. Whitney and others have experienced these same phenomena for as long as individual invention/creation has been recognized as valuable.

    Once again, a law that ignores whether persons are actual humans capable of producing or companies who make up teams of humans capable of stealing, recreation, etc. or with the funds to commit for elaborate duplication/alteration/replication seems pertinent to any foundation of copyright laws.

    While trusts may be set up to continue to earn the advantages of someone’s work product who has passed away, can the concept of recurring earnings measure up to the integrity of the copyright law of the living persons it is supposed to protect?

    The best any company can achieve after the initiator has died is a reservation of rights with regard to the value of the product, and the earnings anticipated. There is no human harm since a person cannot be harmed who is already dead.

    But for the living, an appropriation of work product not only reduces incentive, it is personally insulting to the maker who must watch as others benefit from his work. The nature of copyright litigation is such that like other litigation, success generally goes to the heavily endowed who if made wealthy by the earnings of appropriated works, always has more money for access to justice than the person who has not benefited from his own work.

    While the typical reaction of most to deal with that type of insult is that replication is the best form of flattery, that is little consequence for society who relies upon the strong drive of motivation of people to work at creative projects to begin with. Extinquishing the desire to work is the inevitable outcome of those whose works have been stolen if they are living, and it seems this principle trumps all possible excuses or fringe arguments of the extension of justice to cover those whose intent is to benefit by the use of another’s effort.

    Either work is sacred, or not; if not, because of the manner in which copyright laws are drawn, and administrated, or litigated, the system works only to preserve the right of appropriation, not the right of the inventor/creator for which the system was made.

    Typical among most considerations of human activity, the emphasis upon being human and human performance is necessarily key to success. When the human factor is ignored, any system created cannot be made for humans to honor their output.