The copyright owners to the Guthrie song "This Land is Your Land" have threatened suit against JibJab for the hilarious Kerry/GWB spoof they put out, which I linked to in this post. Unfortunately, as a recent article in Reason points out, there may be some grounds for the suit. The short version: the "parody" fair use exception for copyrights only works if the spin-off parodies the original work, not someone or something else. This could be technically be considered a "satire" instead, and may not have the same protections according to this 9th Circuit opinion. Note: the 9th Circuit is basically synonymous with California, which would have jurisdiction over a significant portion of artistic works.



In the Dr. Seuss decision, the Ninth Circuit of the U.S. Court of Appeals ruled that The Cat NOT in the Hat!, a book by "Dr. Juice" that told the story of the O.J. Simpson trial, violated the Seuss estate's copyright in "The Cat in the Hat," by drawing the parody/satire distinction. Because the infringing book wasn't parodying Seuss' original work, they determined it infringed on the copyright.



It's not entirely a lost cause, as there is some argument that the song not only parodies the elections, but also Guthrie's message. Ernest Miller of Corante blogs this:



". . . 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."



Andrew Raff of IPTAblog also favors this view in his excellent piece "This Use is Fair Use":



"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."



I only hope a court will see it that way, as I thoroughly agree with them. Besides the overall cynical tone of the piece, it includes a shot of a Native American on the plains singing "this land was my land" as Walmarts, shopping malls, and SUV's spring up in the background to the choral response "but now it's our land." That isn't a parody of Bush or Kerry, but our consumerism and greed as a whole. It points out precisely the way that many people believe we're destroying 'our land' in the name of profits. This point might prove a difficult one to argue on the part of a company seeking to capitalize on this free video clip?



As the Reason article points out, this shows the nasty state of copyright law today. It's supposed to be a balance between encouraging creative expression, and ensuring artists get paid the full worth of their efforts. But the rights artistic works no longer generally owned by individuals, like say Walt Disney. Instead, they are owned by multi-gagillion dollar businesses that would feel a solid financial hit if Mickey were to go public domain, as he was scheduled to do in 2003. These businesses have a huge financial incentive to do just what the Disney Corporation did, get an entertainment-type politician (in that case, Sony Bono) to sponsor a bill extending the copyright laws another 20 years. Now, instead of the "Life+50" rule it's "Life+70." And anyone who thinks they won't do the same thing when the next deadline rolls around please contact me to buy a bridge in Brooklyn.



There was a rather bad movie out a year or so ago called "The League of Extraordinary Gentlemen," involving familiar characters from the past - the invisible man, Captain Nemo, Dorian Gray, Allan Quatermain, Dr. Jekyll, etc. - as adventure heroes. I pointed out to a friend at the time that the likely reason the movie could be made at all is that the copyright on these 1800's characters is expired, and they're in the public domain. Otherwise: no more vampire movies, no Frankenstein characters, no Sherlock Holmes spin-offs, it would simply be too expensive for the original artist to write such a story without the backing of another large corporation to buy the rights to the characters. Many of these derivative works are not exactly quality material, but some are quite good. Laurie King's excellent Mary Russell and Sherlock Holmes series comes to mind, for one. (Yes, I'm a mystery buff).



This should be an interesting case to follow, if no one steps up and settles it before it goes to court.