Sue You: This Song Is Our Song
When was the last time you saw John Kerry on his knees before world leaders, clad in S&M gear and with a ball gag in his mouth? Or eyed President Bush looking sheepish in a red dunce cap?
Chances are it was sometime this past week on national TV and maybe 10 times before that on the Internet, thanks to JibJab, a site that is posting animators Evan and Gregg Spiridellis’ latest creation, This Land.
The film features Kerry and Bush dissing each other like boys on a playground to the tune of Woody Guthrie’s classic song, “This Land Is Your Land.” It’s made it around the world, with enthusiastic viewers commenting about the film on the site’s blog from as far away as the Netherlands, New Zealand and Guam, and its historical value has been noted by the Library of Congress, which on Tuesday e-mailed the Santa Monica, California-based Spiridellises asking to add the animated short to its archives.
But while about 25 million viewers have been clogging JibJab to chuckle at the film’s South Park-like Flash animation and juvenile insults (Bush labels Kerry a “liberal sissy,” and Kerry responds by calling Bush a “right-wing nut job”), the Spiridellises aren’t exactly laughing their way back to the drawing board.
In the wake of their short’s popularity, which began soon after its July 9 Web release and has been punctuated by appearances and mentions on almost every major U.S. news show, the brothers found themselves in a legal skirmish with Ludlow Music, which, Ludlow attorney Paul LiCalsi said, owns the copyright to Guthrie’s famous tune.
Ludlow Music is a unit of music publisher The Richmond Organization. JibJab Media, the proper name of the Spiridellises’ company, never got permission to use Guthrie’s song in This Land, and Ludlow Music is telling them to pull down the short.
About a week ago, the brothers were served with a cease-and-desist order on behalf of Ludlow Music, demanding they remove This Land from their website. LiCalsi said Ludlow has not filed a lawsuit yet against JibJab and hopes to resolve the case without taking that step.
He declined to state any deadline by which Ludlow Music wants the film taken off the Internet. A letter (PDF) dated July 23 from LiCalsi to JibJab lawyer Ken Hertz – who recently handed the case over to Electronic Frontier Foundation staff attorney Fred von Lohmann – demanded the company “immediately remove the unauthorized movie from all associated websites, and cease and desist from exploiting the work in any way.”
LiCalsi wrote, “We further demand an accounting for all income received from the exploitation of the unauthorized movie. In the event that we do not receive written confirmation by July 30, 2004, that JibJab will comply with the foregoing, we may conclude that all steps short of litigation are exhausted.”
Gregg Spiridellis said the order, much like the wild popularity of This Land, came as a surprise. The film is still up on JibJab, and he hasn’t been advised by his attorney to remove it, he said. Von Lohmann confirmed there were no plans to remove the cartoon at this time.
“My guess is the fact that people responded so strongly is one reason – is the reason it’s so successful and is also the reason, I guess, they’re coming after us,” Gregg Spiridellis said.
He said they didn’t think they would get in any legal trouble for using the song without permission, and they’ve never had problems with any of their other short films. The brothers have been sharing animated political shorts on JibJab for five years, he said.
They felt comfortable they were in fair-use territory, he said, and thus didn’t feel the need to ask Ludlow Music if they could use the song. Fair use allows limited unauthorized use of copyright works to complement or help illuminate things like commentary, criticism, news reports, research and education. Fair use also considers whether the copyright work in question is used to make a profit, what type of copyright work is being used, how much of it is being used and if the work’s author is losing money from the unauthorized use.
“For us, this was a clear fair-use parody from day one,” Gregg Spiridellis said. “And even … how we conceived the idea was to say Woody Guthrie was this incredible, prolific songwriter and just had these incredible, insightful things to say in his political songs, and we thought it would be funny if Woody Guthrie was alive today and just using the discourse of American politics in his songs.”
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 in the past week – an option that’s come and gone from the site before. Pitted against an estimated $20,000 in recent Web-hosting costs, it would appear This Land has cost JibJab about $19,000.
But for LiCalsi, This Land isn’t a parody, and Guthrie’s song must be licensed for legal use. “You can’t just take someone’s copyright and use it for some other purpose,” he said. “A true parody is a work that uses a portion of a copyrighted work in order to criticize or comment on that work. It’s the same principle under which you can quote a book, if you’re writing a review of a book, without getting a license. Something is not a parody when there is no function of critique or comment on the original work. I think it’s clear here that that is the case in the JibJab version of This Land.”
The film bears no relationship to Guthrie’s song other than stealing music and some of the words, he said. Even if it were a parody, the law says you can only take as much of the original as is necessary to make your point, he said.
LiCalsi said his client wants to resolve the dispute without filing a lawsuit against JibJab, but if it came down to a courtroom appearance, he would argue the Spiridellises used, without permission, too much of the music and lyrics of the original song in their short.
Gregg Spiridellis said he has no idea what will happen legally. “It’s up to the publisher. If they choose to make our (lives) miserable, then I guess that’s a legal right they have at their disposal. Hopefully, you know, if that happens we’ll tell everyone about it,” he said.
And what would Guthrie, who died in 1967, think of JibJab’s use of his song? If a message reportedly written at the bottom of one of his songbook pages in the 1930s is any indication, it’s possible he wouldn’t mind.
According to various Internet sources, including the website of the Museum of Musical Instruments in Santa Cruz, California, Guthrie allegedly wrote, “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.”
But there’s more!
Turns out Woody Guthrie lifted the melody of “This Land Is Your Land” essentially note-for-note from “When The World’s On Fire,” a song recorded by country/bluegrass legends, The Carter Family, ten years before Guthrie wrote his classic song. Here’s a short snippet (380k mp3) of the song (the song can be found on the box set, The Carter Family: 1927-34). You don’t need to be a musicologist to hear what we’re talking about.
Now we’ve got nothing against Woody’s borrowing. In fact, it’s a part of the “folk process” that Woody himself championed. I can’t imagine that The Carter Family minded.
But in the letter threatening copyright litigation over JibJab’s animated political parody, “This Land,” Ludlow’s lawyer goes out of his way to attack JibJab for copying “the entire melody, harmony, rhythm and structure of the [sic] Mr. Guthrie’s song.”
Er, sorry there Ludlow, but actually, the entire melody, harmony, rhythm, and structure of “This Land is Your Land” doesn’t belong to you.