Monday, July 26, 2004

JibJab video: parody or satire?

First watch this JibJab.com video featuring a parody/satire of the song "This Land is My Land" and starring Bush and Kerry, it probably will not be up for long.

The owner of the copyright in the song doesn't think that little video is as funny as you do. The company, The Richmond Organization, is breaking out the lawyers on JibJab.com. Ironically, The Richmond Organization can be shortened to "TRO," which is probably what they are seeking against JibJab at the moment (that's a "temporary restraint order" 'round these parts).

So, as happens at least once a month, we are back to discussing the difference between a parody and a satire. Simply put, a parody targets the original content or creator, for example if the JibJab video targeted how lame the song or it's lyrics are then it would be parody. Satire uses the work to comment on something other than the original content or creator. A work can be a parody if it contains elements of both parody and satire.

The JibJab video would likely be considered satire, because the video does not directly target the original song. The clear target here is Bush and Kerry or politics/society in general. Also, if the video is a commercial use of the song, that will hurt JibJab's case. Commercial use is loosely defined, that the video brings people to a site where there are things offered for sale would be enough.

TRO is upset about the use of the song because apparently:


...the Jibjab creation threatens to corrupt Guthrie's classic [song] -- an icon of Americana -- by tying it to a political joke; upon hearing the music people would think about the yucks, not Guthrie's unifying message.

Article here.

Here's more on the difference between parody and satire: the "iRaq"/iPod ads; TV Commercial Jams; parody or satire?

***UPDATE 8/25/04***
Here is a more recent post in which I consider that the JibJab video may actually be a parody. We will really never know now whether the video would have been found to be a parody or satire due to the recent settlement. Congrats to the JibJab guys for sticking it out. Most companies just fold when threatened.



*****UPDATE****: There's a discussion of my recent "Parody or Satire?" posts over at The Importance of... Ernest Miller disgrees with me that the JibJab video is satire, noting that the JibJab version concerning division certainly attacks the meaning of the original, which was a message of unity. But Lawrence Lessig agrees with me here, and links to me here, thanks Larry! (I guess after a link we are on first name basis, right?)

****UPDATE****: The JibJab crew have contacted the EFF concerning the threats of lawsuits by TRO.

***UPDATE***: This post linked to on Slashdot, here.

19 Comments:

Blogger Tom said...

Chris, I just watched the video again and this time at the top of the loading page it reads "A parody of Woodie Guthrie's This Land" I don't know if that helps their case, but figured you might be interested.

7/27/2004 11:50 AM  
Blogger CRC said...

Saying a work is a parody doesn't turn it into one.

Re trademark law: On the other hand, it is certainly a good idea to note in an apparent way (i.e. next to the work in big text) that a work is a parody in order to avoid confusion as to source. This is more important when parodying trademark - you don't want there to be ANY consumer confusion about the source of the work or you may be liable for infringement even if the work is a parody.

The JibJab case concerns copyright, so the labeling isn't really important. The most important factor in most trademark law cases is "consumer confusion." That isn't as important in copyright law, although if there is confusion and the new article is replacing the old in the marketplace then that is a factor that goes against a finding of parody (fair use). The reason here is that a parody is supposed to pick on the original (even to the extent of killing off), but not replace it.

7/27/2004 12:21 PM  
Blogger Ernest Miller said...

I don't see JibJab's parody replacing the original. The original is still a beautiful, patriotic song (though its original meaning is often overlooked). The parody might kill off the original in some ways (or at least the simplified patriotic ditty version), but I doubt people will be singing JibJab's version at many concerts in the future.

7/27/2004 12:59 PM  
Blogger CRC said...

Maybe I misworded something above, but I don't think the JibJab video replaces the original at all. I was just pointing out that there is a difference in the effect a disclaimer can have when dealing with trademark vs. copyright in an effort to fully address Tom's comment.

No way will the JibJab version replace the original in this case (which does mitigate against a finding of fair use), nor is it likely to even do much damage to the song's reputation (which wouldn't mitigate against a finding of fair use anyway, even if the parody is "lethal").

No one would have even remembered the JibJab video by the end of next week if TRO hadn't gotten all 800-pound gorilla on the JibJab guys. That always ends up being an ultimate irony in these publisized case, the work always gets so much more attention after the C&D letters go out, and the company loses some goodwill among consumers.

In the JibJab case all the attention may even reveal to many people information they didn't previously know concerning the song's original socialist meaning. Honestly, I didn't know about this hisotry until I read your post, which is one more reason why I found the song to blatently be satire and not parody. I've shifted more in your direction since reading your post, I think it is a very close call but still satire.

7/27/2004 1:32 PM  
Anonymous Anonymous said...

This song is my song,
this song's not your song,
cuz I got a lawyer
and you don't got one!

I saw you use it,
I saw you abuse it,
This song's not made for you and me.

7/27/2004 7:22 PM  
Anonymous Anonymous said...

This is really too bad, because I'm sure if Woody were still around he wouldn't 'give a dern'. A quote from one of his songbooks:

"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."

7/27/2004 8:00 PM  
Anonymous Anonymous said...

Ooooooo.....!!!! Sing along!

I went rumbling...
that dusty highway...
I saw a sign that said private property!
But on the other side...
It didn't say nothing
This land was made for you and me.

Now, try saying THAT ain't parody or political commentary.

7/27/2004 9:35 PM  
Anonymous Anonymous said...

If you listen to this story: http://www.npr.org/features/feature.php?wfId=1130561, you'll find that Guthrie's original intent with "This Land is My Land" was to criticize bind patriotism, and challenge Americans to support their less fortunate neighbors. From this point of view, the JibJab version is true to Guthrie's spirit and message, and the Richmond Organization is the one who is "corrupting Guthrie's classic song."

7/27/2004 11:51 PM  
Anonymous Anonymous said...

Funny how people are sensitive to 'copyright infringement' only if it is a widespread success! Countless campfire singalongs, children's choirs, singers, have used the song with impunity, and without giving the 'Guthrie estate'compensation. There have been well-known parodies and satires of 'This Land' previously.

I'm confused about the parody/satire discussion. Aren't both protected? Like the recent tussle Al Franken had with Fox News, such trademarks and copyrighted material can be used, even in a commercial setting for the purpsoe of selling a book. Franken's was considered satire, and Fox News' case was thrown out of court.

All in all, I think the Guthrie bunch will have a tough time convincing a judge that people will confuse the JibJab "This Land" with the original "This Land."

Here's another thought...isn't the music to Guthries' "This Land" exactly the same as the music to "You Are my Sunshine"? Well, "You are My Sunshine" came first, and was written and performed by Jimmie Davis in Febuary of 1940. I believe, and Guthrie's recording also came in Febuary of 1940. If you listen, the melodies are almost identical. Hmmm...the same melody and chord scheme, recorded in almost exactly the same month. Guthrie supposedly wrote the song while hitchiking from Pampa Texas to New York; Davis recorded his song in a studio in Chicago. So who ripped off who, Davis or Guthrie? Where's the copyright infringement there? I'd be curious to know if anyone brings this up if it goes to trial! Sounds like the Guthrie bunch has a pretty paper thin argument. If they're looking for money, JibJab has exactly 2 employees and I hear is pretty strapped for cash. Sounds like they're suing just in it for the publicity.

7/28/2004 12:11 AM  
Anonymous Anonymous said...

I think that everyone has been making too big a deal out of so called rights and permitted usage. It just goes to show that there are too many lawyers with too little to do. If either of the candidates portrayed in JibJab's hilarious/sad but true parody would take THAT as a serious issue he reuslt may be:

BUSH: reinstate the draft and send the lawyers to North Korea.

KERRY: ratify the International Criminal Court statute and donate all the lawyers to Uganda....

7/28/2004 7:01 AM  
Anonymous Anonymous said...

How can the original copyright holder effectively release the song to the public domain (based upon Woody's standard copyright notice mentioned above) only for the current owners of the estate to rescind this? This seems to be bad law.

The 'Happy Birthday' song is owned by someone, according to the recent film The Corporation (http://www.imdb.com/title/tt0379225/) - allegedly, if you have it in a film and the lawyers come calling.

7/28/2004 7:36 AM  
Anonymous Anonymous said...

This has been done over and over. Weird Al fought this battle on at least one occasion when one artist refused to give permission for Weird Al to use one of his songs. And Weird Al won, every time.

7/28/2004 8:37 AM  
Anonymous Anonymous said...

One note. Once you have given up rights to any part of the copyright, as Woody Guthrie did when hev published them, any subsequent purchaser of the copyrighted work can't retroactively
revoke the rights previously submitted. Woody Guthry effectively
open sourced the lyrics. Basically a copyleft. So TRO is all wind
they can't win this one.

disclaimer: IANAL, but I'm a frequent reader of Groklaw. ;)

7/28/2004 9:49 AM  
Anonymous Anonymous said...

The problem with using the NPR link above in comments is that it tells us the meaning of the song is to criticize blind patriotism and encourage us to help less fortunate neighbors.

Balderdash.

The song criticizes the results and policies of oppressive government.

"As I was walking/
In the shadow of the steeple/
By the relief office/
I saw my people/
And some were stumbling/
And some were wondering if/
This land were made for you and me"

The relief offices already were the result of the 'neighbor helping neighbor' policies. 'Thanks, Big Government!' is what Guthrie is saying, 'thanks for nothing!'

In fact, this verse and the two following verses were banned. They were removed from the library of congress recording that I have. The Democrat government of FDR didn't like the criticism from a song that showed what a good country America was, and what a bad government was doing to the people in 'fly-over country,' a term that had yet to really be used much with flight in its infancy.

As I go walking/
My freedom highway/
I saw a sign that said/
Private Property/
On the Other side/
Didn't say nuthin/
This land was made for you an me/

As I go walking/
My Freedom Highway/
No-body living/
Can ever stop me/
No-body living/
Can ever stop me/
This land was made for you and me.

Note that the Committee on American Affairs questioned Pete Seeger about his friend Guthrie with regards to communism, and was told 'F* you, Senator.'

7/28/2004 10:03 AM  
Anonymous Anonymous said...

re &:36 anon:

Woody did not release the rights with the album comment. Just stated feelings about property rights similar to those posted in the song itself.

Someone later less focused on that perspective simply sold the legally held rights, seemingly all to amuse us today with the irony.

7/28/2004 10:45 AM  
Anonymous Anonymous said...

IN reference to a previous comment about Wierd Al. He needed to get permission from the holders of the song's copyright (he even got in trouble when he mistakenly made a parody video of a song without first getting clearance; he settled out of court for that one).

Just a year ago Wierd Al was going to do an Eminem song, but the company backing Eminem wouldn't give him the rights (actually I think Eminem himself nixed the idea).

The lesson to be learned here is that people can be creative if and only if they are backed by big media empires.

7/28/2004 5:43 PM  
Anonymous Anonymous said...

Weird Al never uses songs without legal permission. (Once he accidentally failed to get, as he says, ethical permission.
http://www.theonionavclub.com/feature/index.php?issue=3632&f=3
)

But Al feels it is inappropriate to do a parody of a song without the owner's permission, simply as a matter of taste.

7/29/2004 11:42 AM  
Anonymous Anonymous said...

Weird Al also asks for permission so he can get song writer credit, and get paid royalties -- which he could not recieve without permission. :)

7/30/2004 2:32 AM  
Anonymous Anonymous said...

I have yet to see anyone point out one area where, I think, the animation is clearly a parody of the original song.

In the middle, a native American in full traditional dress says somewhat sadly "This land was my land", and then a whole slew of commercial interests, billboards, big box stores, and consumers move in and shout "And now it's *our* land!"

Sounds to me as though on the merits of that verse alone it very much parodies the original, which appears to have had a rather different sentiment to it...

8/30/2004 12:20 PM  

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