JibJab Files Suit to Defend Fair Use Rights

September 2004

Music Publishing

In early July, the two brothers behind the animation shop JibJab released a short flash animation featuring cartoon versions of President Bush and Senator John Kerry slinging insults at each other to the tune of Woody Guthrie’s “This Land Is Your Land”. The short, called “This Land” has been very popular but the copyright holder to the music composition, Ludlow Music, Inc., has threatened JibJab and its upstream website hosting providers with copyright litigation. Jibjab have argued that their use of “This Land is Your Land” should qualify as a fair use under copyright law: The animation house used only a few lines of Guthrie’s lyrics and the short is also a parody, commenting not only on the 2004 elections, but also on Woody Guthrie’s famous song. JibJab has asked the Electronic Frontiers Foundation to help to protect its fair use and free speech rights and the EFF have filed a lawsuit on JibJab’s behalf, asking a federal court in San Francisco to declare that the use of the composition is perfectly legal. Ludlow were previously successful in a copyright action against Robbie Williams after Williams used near identical lyrics from a Guthrie song in Williams’ song“Jesus In A Camper Van”. However the EFF’s motion to allow for ‘fair use’ does have some merit. In the case of Abilene Music v Sony Music and Others (2003) (see Law Updates December 2003) a New York federal court (Judge Gerald Lynch) upheld the fair use doctrine under the US Copyright Act holding that a parody of “What a Wonderful World” by rapper Ghostface Killah wad not an infringement of copyright as the rap was clearly a parody – replacing an ode to the beauty of nature with an invitation to get high on drugs with the rapper.

See : http://www.eff.org/deeplinks/archives/001782.php andhttp://www.musicjournal.org/03thesongremainsthesame.html

Ludlow Records Inc v Robbie Williams, Guy Chambers, EMI Music & BMG Music (2002)

The Electronic Frontiers Foundation backed Jibjab and provided research that showed that the piece had fallen into the Public Domain and a ‘re-registration’ of the title in 1984 was ineffective as the copyright expired in 1973, 28 years after first publication in 1945. Fred von Lohmann, EFF Senior Intellectual Property Attorney said:

JibJab’s fantastic animation is a clear fair use of Woody Guthrie’s “This Land Is Your Land,” for the reasons described in detail in EFF’s initial letter to Ludlow’s attorney. But also important was our other discovery: the Guthrie classic has been in the public domain since 1973. Fact 1: Guthrie wrote the song in 1940. At that time, the term of copyright was 28 years, renewable once for an additional 28 years. Under the relevant law, the copyright term for a song begins when the song is published as sheet music. (Just performing it is not enough to trigger the clock.). Fact 2: A search of Copyright Office records shows that the copyright wasn’t registered until 1956, and Ludlow filed for a renewal in 1984. Fact 3: Thanks to tips provided by musicologists who heard about this story, we discovered that Guthrie published and sold the sheet music for “This Land Is Your Land” in a pamphlet in 1945. An original copy of this mimeograph was located for us by generous volunteers who visited the Library of Congress in Washington, DC. This means that the copyright in the song expired in 1973, 28 years after Guthrie published the sheet music. Ludlow’s attempted renewal in 1984 was 11 years tardy, which means the classic Guthrie song is in the public domain (I’ll note that Ludlow disputes this, although I’ve not heard any credible explanation from them.) So Guthrie’s original joins “The Star-Spangled Banner”, “Amazing Grace”, and Beethoven’s Symphonies in the public domain. Come to think of it, now that “This Land Is Your Land” is in the public domain, can we make it our national anthem? That would be the most fitting ending of all.

However Billboard.com reported that Ludlow Music had agreed a settlement with Jiobjab: Ludlow agreed to allow the cartoon – one of the biggest Internet draws of the summer – to keep using the song. In return, JibJab dropped a lawsuit against Ludlow that sought an order saying its use of the song was protected because it was a parody and “This Land” was in the public domain. The creators also agreed to provide a link on their Web site to the song’s original lyrics and to donate 20 percent of any profits to the Woody Guthrie Foundation (www.billboard.com August 26th 2004).

EFFector Vol. 17, No. 31 August 26, 2004

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