The JibJab success story
JibJab Media Inc., based in California and run by Gregg and Evan Spiridellis, achieved enormous attention with its two minute humorous and satiric flash animation about the U.S. presidential election campaign. In my own words and based on what I have heard and seen I would describe the work (JibJab 2004) as follows: It builds on the well-known Woody Guthrie song in quite an innovative way: the original lyrics are by and large replaced by polemics to be heard in the election campaign, which are elaborated and acuminated here for satirical purposes. The lyrics are sung by „voice talent“ Jim Meskimen, who imitates the voices of President Bush and Senator Kerry turning the song into a duet with a new potential to play around with the meanings of the possessive pronouns „my“, „your“, and „our“. In the video the singing protagonists appear as animated caricatures with faces taken from the candidates' Web sites, as Gregg Spiridellis said in an interview (CBS 2004). Adrienne Spiridellis contributed the instrumental part (which sounds like ukulele), which apparently is played without any artistic ambition, almost mechanically. JibJab released its animation on the 9th of July 2004 (EEF 2004b), and drew 10.4 million unique visitors in July (comScore 2004). It was also broadcasted on various occasions on TV (see EEF 2004b).

The Woody Guthrie success story
„This land is your land“ was composed by Woody Guthrie in February 23, 1940, and recorded in 1944. Joe Klein, his biographer, writes: „In April, 1944, Woody recorded about 120 of his songs. One of the songs at the last, undated, session was Woody's old Irving Berlin parody, ‚God Blessed America‘, changed slightly, with a new tag line at the end of each verse (‚This land was made for you and me ...‘) and a new title, ‚This Land Is My Land‘ “ (Klein quoted in Kochlin 2002). This song also had made a considerable carrier: on the one hand it carried on as protest song with a focus on property and the social inequality (see Spivey 1996). On the other hand it was understood by many as a song of national unity. This double use was facilitated by the different character of the various verses. There are some, which can be easily adopted in a nationalistic way – those which are usually recorded (even by protest singers). In this domesticated form the song made it to the school books, not preventing however pupils to be creative and to re-invent the original focus on property even more drastically than Guthrie himself (e.g. This land ain't your land, this land is my land / I've got a shotgun, and you ain't got one / I'll blow your head off if you don't get off / This land is private property; quoted in Walker 2004). Further criteria of success to be applied are uses of the song as an advertising jingle of United Airlines and Ford Motor Company, and as theme song for George McGovern‘s 1972 presidential campaign (see Klein quoted in Kochlin 2002), and last not least efforts to make the song the national anthem (see e.g. Pete Seeger quoted in Kochlin 2002).

The copyright story of This Land
The history leads us back to at least the 19th century and an old Baptist hymn „Oh my Lovin‘ Brother“ (that‘s what Joe Klein writes). A slightly different category is used by Mark Zwonitzer and Charles Hirshberg who classify it as „African-American sacred song“ (quoted by Chuck Welch on BlogJazz, Welch 2004). In a collection of „Hymns and praise songs“ maintained by Doug Plata, a physician from California, I found the following lyrics: Oh my loving brother, when the world's on fire / Don't you want God's footstool to be your pillow? / Oh hold me over to the Rock of Ages, / Rock of Ages cleft for me. Tastes like public domain.

An early recording of this gospel goes (probably) back to the late 20ies when a black singer and guitarist Blind Willie Davis recorded it as "Rock of Ages" (see Welch 2004). Next step, the Carter Family, which had begun to put African-American sacred songs on record, recorded it in 1930 under the title „When the World's on Fire". Text and melody are still those of the old hymn, while the transformation from gospel or blues style to country style is apparent. Michael Rader, incidentally a jazz fan and colleague working for the INDICARE project, used the word „song catcher“ in a LessigBlog on the issue to describe the activity of A.P. Carter, meaning someone copyrighting songs from the public domain (Rader 2004). The Guthrie song was written in 1940, but according to EFF (2004c), „the initial copyright term was triggered when Guthrie sold his first version of the song as sheet music in 1945“. In his first song book (Guthrie, 1945; available as facsimile on the net), which starts with an introduction against copyright for this type of song, he nevertheless claims „Words and music“ for THIS LAND. This might not be the complete truth given the origin of the melody mentioned already. In 1945 the copyright laws granted a copyright term of 28 years, renewable once for an additional 28 (EFF 2004c). Ludlow filed its copyright in 1956 and renewed it in 1984 believing it remains valid, while EFF disputes the claim arguing that copyright on the song then ran out when Ludlow failed to renew its registration in 1973 (see EFF 2004c).

The copyright story of This Land. A Parody…
The copyright story of JibJab is well documented thanks in particular to the Electronic Frontier Foundation and its Online publication Deep Links, to Wired reporting repeatedly about the progress of the controversy, and especially to Ernest Miller making his blog on the subject available at Corante (EFF 2004a-c, Dean 2004, Metz 2004a,b, Corante 2004). A good overview is also contained in the Complaint itself (EFF 2004b). Here are the main steps:

  • 09/07/2004: Release of the web animation „This Land“
  • 20/07/2004: Certified letter by Kathryn Ostien, Director of Copyright, Licensing & Royalties for Ludlow Music, Inc.
  • 21/07/04: Answer by Goldring Hertz & Lichtenstein, litigation counsel for Jib Jab, to the letter
  • 23/07/04: Sonnenschein, Nath & Rosenthal, litigation counsel for Ludlow, Inc. send a cease-and-desist letter to JibJab setting the litigation deadline 30/07/04 (Sonnenschein 2004)
  • 26/07/04: the same law firm sends a cease-and-desist letter to Atom Shockwave, which via its AtomFilms website hosts the video
  • 28/07/07: the Electronic Frontier Foundation, now litigation counsel for JibJab answers the afore mentioned letters (EFF 2004a)
  • 29/07/04: the Electronic Frontier Foundation sends its „Complaint for copyright misuse and for declaratory relief of non-infringement of copyright“ to the Unites States District Court for the Northern District of California (EFF 2004b).
  • 24/08/2004: JibJab dismisses its suit against Ludlow, and Ludlow is not planning to pursue any further legal claims against JibJab (EFF 2004c).

In the letter of July 23 Ludlow claims to be the exclusive copyright owner of the Woody Guthrie song. They accuse JibJab of having copied „the entire melody, harmony, rhythm and the structure“ of the song without authorisation or consent, and claim this constitutes a „blatant and wilful copyright infringement“. They reject the argument that the animation is a parody, because the „purpose and character of Jib Jab‘s work clearly is not to parody the original work“ as it does „not comment on the themes of the song“ and uses „too much word“ of the original to be a parody. In addition they envisage „a significant negative impact on the market for the composition and any derivative work“.

The July 28 response by EFF basically refers to the First Amendment and the „fair use“ legal provisions. They regard the animation a „humorous political commentary of both actual politics and the classic“ and as „a work that contains both transformative and original expressions of creativity to be encouraged by copyright“. They hold that JibJab is engaging in political speech, and that fair use allows to „build upon, reinterpret, and reconceive existing works“, and that transformative works with a non-commercial character do not supersede the original. Parodies are no substitute for the original. In contrast to Ludlow, EFF holds that the animation is a parody exploring the same themes as the original and uses „only a hand full of words“. They also reject the argument of financial damage, as „effects of a derivate work on primary market would not be relevant under copyright law“. With respect to the copyright of the melody, EFF points to the Carter Family recording and the traditional spiritual.

In the Complaint for copyright misuse of 29.7.04 by EFF, more or less the same arguments are put forward, however there is more emphasis on the weak copyright claim for the composition regarding the Guthrie Composition now a „derivative work“ of the Carter Family“s work of 1930. The knock-out-argument however is that the Guthrie composition „is no longer protected by copyright and/or is part of the public domain“.

Open questions
Although for the time being the case seems to be settled on these grounds, some questions remain. The overall question is what would have been the result of the conflict if Ludlow had been the exclusive rights owner? Would all these new types of creative works, enabled and pushed by the Internet as technology and repository, be legal or illegal? One should also consider, if a company like Ludlow would have licensed rights to JibJab for their non-commercial creative work under acceptable conditions? I guess they would not have, stifling creativity.

With respect to the character of the JibJab animation I wonder why the EFF did not play the public domain card right from the start. In my feeling the voice imitation as an element of the animation was not taken into account sufficiently in order to underpin the character of work as parody of the original. If the argument that the JibJab animation is a parody of a parody (given that Guthrie‘s song had been a parody of Irving Berlin‘s), is good for anything, I don‘t know. More interesting might be the observation on the „double use“ character of the song, because the partisan view always tends to stress just one reception or perception.

Next, the commercial side of the affair seems still to be underexposed. As Natali Helberger of IViR – the legal expert within INDICARE – told me, the non-commercial character of a work is most important for the fair use argument. On the JibJab website there is a donation button. Assume this income mechanism would have generated considerable income caused by those out of 10 million+ spending a Dollar, or assume JibJab gets a share of the advertising income of the web hostsâ€|. How would this change the fair use argumentation? Turning to Ludlow, they probably won‘t suffer financial damage. On the contrary, they will experience an increase of music sales because the JibJab animation will have raised new interest in the original interpretation and other licensed interpretations of the song. Finally, as INDICARE is a European project we should not forget to ask how the same case would have been dealt with under European law. Volunteers to write the story from a European perspective for INDICARE Monitor are welcome!

Bottom line
Why does this case matter for INDICARE? The answer is clear: the interests of small creative companies leveraging the new potential of the Internet are at stake as well as the interest of citizens to enjoy freedom of expression and of consumers who long for quality entertainment. A drawback of the preoccupation with „This Land“ however is, as Woody Guthrie already noted in his songbook „ you think about these Eight words all the rest of your life“, and I would add you will never ever get the tune out of your head.

PS.: A short remark on what to expect in this issue: You will find three complementary articles dealing with interoperability. While Willms Buhse, among other things Vice Chair of the Open Mobile Alliance (OMA), provides insights into evolution and ambition of OMA standardization efforts, Gergely TÃ3th from Budapest (SEARCH) gives a well structured introduction to different music formats and their relation to DRMs, before he discusses the question how to achieve interoperability between them. Ot van Daalen, a Dutch lawyer, contributes a thoughtful and provoking opinion article on the tension between interoperability and information security, and suggests compulsory licensing as solution. In the remainder of the issue Lutz Niehüser examines the right to resell, which is of great importance to consumers, with respect to digital online media. Next, Ulrich Riehm, ITAS, presents the opinions of musicians about download, filesharing, DRMs etc. based on two U.S. surveys. Finally Rik Lambers shows – on the occasion of an IViR-workshop – why the abstract "code as code" debate is inherently about consumer concerns.

Sources

About the author: Knud Böhle is researcher at the Institute for Technology Assessment and Systems Analysis (ITAS) at Research Centre Karlsruhe since 1986. Between October 2000 and April 2002 he was visiting scientist at the European Commission's Joint Research Centre in Seville (IPTS). He is specialised in Technology Assessment and Foresight of ICT and has led various projects. Currently he acts as editor of the INDICARE Monitor. Contact: + 49 7247 822989, knud.boehle@itas.fzk.de

Status: first published in INDICARE Monitor Vol. 1, No 3, 27 August 2004; minor corrections 28/08/04; licensed under Creative Commons;
URL: http://www.indicare.org/tiki-read_article.php?articleId=38