Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
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Chris Cohen has been on a roll analyzing whether various derivative works are satires or parodies. The difference can mean one is legal and the other isn't under a fair use analysis. The basic rule is that a parody, which critiques the work borrowed from, is okay. Satire, which critiques something other than the work borrowed from, is not fair use. I tend to take a much broader view regarding whether something is parody (Parody of a Parody), so read on for some of my responses ...
UPDATED 0915 PT
UPDATED 2 1130 PT
UPDATE 3 31 July 2004
I've added a JibJab Category" to make following the story easier.
iRaq Posters
Several posters merge images of war (including torture at Abu Ghraib prison) with Apple's distinctive silhouette ad campaign for the iPod ("iRaq" Ads). Cohen argues that these are satire, since "the clear target of these remixed ads is society/politics in general and not Apple or the iPod." He cites the Dr. Seuss case (poetic account of the OJ Simpson double murder trial in style of Dr. Seuss is satire, not parody) in his favor. I agree that satire is involved.However, something can be both satire and parody.
I believe the iRaq posters are such a case. The parody here regards the meaning of the iPod as the lastest, hippest fashion accessory/gadget. The iRaq posters are pointing out the essential frivolity of such consumerist items as the iPod when there is a war taking place half a world away. Apple's ads show presumably happy people dancing alone to the music an iPod provides without, seemingly, a care in the world. The iRaq ads confront this vision by demonstrating that while they may be dancing away, others are suffering and/or causing suffering. In the context of war in Iraq, buying an iPod is shallow and puerile. This is striking directly at the meaning of the original iPod ads.
My view? Parody with broad protection.
Jib Jab's This Land is My Land
JibJab has produced an enormously successful flash version of Woody Guthrie's This Land is My Land that takes broad swipes at President Bush and Senator Kerry. CNN reports that the song's publisher is not happy with it (A Jibjab showdown: Bush-Kerry parody draws the ire of the music publisher that owns the Guthrie song):
"This puts a completely different spin on the song," said Kathryn Ostien, director of copyright licensing for the publisher. "The damage to the song is huge."Cohen again sees this as a satire (JibJab video: parody or satire?):TRO believes that the Jibjab creation threatens to corrupt Guthrie's classic -- 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. The publisher wants Jibjab to stop distribution of the flash movie.
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.I disagree. JibJab's work is a paradigmatic case of parody.
JibJab's wonderful parody undermines virtually every element of the original meaning of Guthrie's song. Where Guthrie's song is provocative understatement, JibJab's is merely provocative. 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.
For most, Guthrie's song has been co-opted as mindless patriotism ("God Bless America" vs. the original "God Blessed America"). JibJab's parody liberates the song for us to think about and consider again.
UPDATE
Larry Lessig agrees with Cohen (on the meaning of “parody”). I stand by my argument that this is a paradigmatic example of parody. In the Seuss case, what was the OJ murder trial saying about Geisel's work? Here the commentary on Guthrie's work couldn't be clearer. "This Land is My Land" wasn't chosen because it had a catchy tune, or clever rhyming lyrics in a distinctive style. It was chosen because of what the song said and what it means about our unity as a nation.
UPDATE 2
Andrew Raff (This Use is Fair Use) and Martin Schwimmer (Copyright: My Two Cents on Jib Jab) weigh in on the side of parody.
Fuse's Silhouette Ads
Here, Cohen and I agree that this is parody (Fuse's new silhouette ads: parody or satire?). However, I do think this actually a somewhat closer case than the others.
I would like to be as optimistic as you are about whether courts would be convinced of the parodic nature of the works I considered in the posts you linked to. When I looked at those cases I considered them in a less nuanced manner than you have. Maybe I have less faith in the liklihood of the courts to dig deep into the meanings of the works. Also, your reasoning reeks of post hoc rationalization, which always seems suspicious to me, even though it can certainly work.
In my defense, in the JibJab post and others, I did note that if a work contains elements of both parody and satire they should still be found to be a parody, however, I was attempting to consider the cases in a more "at the first glance" manner that I feel a court would use during the initial phases of a lawsuit. Again, I don't know the courts too well (considering I've never been before a court with a real case, as a student entering my 3L year, anyone looking to hire?).
I also realize that what one says about IP law actually affects how people view IP. I understand that when I state that those works were probably satire I affect how people view fair use doctrine, possibly narrowing their idea of what parody is. For that I feel a little guilty, but I still stand by my terse analyses.
There are good arguments on both sides for all these cases, particularly the JibJab video. Your analysis of that case proceeds right along the line of the famous Campbell v. Acuff-Rose case. Of course, that's only one way to spin the facts.
I hear that the EFF has been contacted by JibJab. I hope that you folks can prove me wrong on my JibJab analysis!
By the way here are some other fun Parody vs. Satire cases I've looked at:
http://chris-cohen.blogspot.com/2004/05/parody-or-satire.html
http://chris-cohen.blogspot.com/2004/06/tv-commerical-jams.html
By the way, Lawrence Lessig agrees with me - http://www.lessig.org/blog/archives/002052.shtml
Chris,
I don't see why you think my reasoning reeks of post hoc rationalization. What exactly do you expect of artists when they create parodies? Should they also distribute their thinking on the matter?
And should the artist's opinion on the matter necessarily be dispositive? Even the artist's intention wasn't parody, does that matter if we view it as parody? Artist's motivations are complicated, often they really have no conscious idea what they are creating or why, exactly.
As I note in my update, "This Land is My Land" wasn't chosen because it had a catchy tune, or clever rhyming lyrics in a distinctive style. It was chosen because of what the song said and what it means about our unity as a nation. This is exactly what the parody was commenting on (among other things).
I don't know how far a lawsuit would get in this case, but to my mind, this remains a paradigmatic example of parody.
I would consider classic cases of parody to be Lewis Carroll's "How Doth the Little Crocodile" or Henry Fielding's "Shamela". The use of "This Land" as it has been described (I haven't yet succeeded in getting it to play) doesn't seem as clear-cut as these.
I heard that Prof. Nimmer considers all, or many, judicial findings of fair use (or not) on the basis of the statutory four factors to be post-hoc rationalizations of decisions reached by other means. So on this theory any post-hoc rationalization either way would be entirely in accord with our learned judges' practice.
An additional irony: Woody's melody for TLIYL was (as I recall) itself a derived melody.
I knew you wouldn't like that "reeks" wording. :)
What I call “post hoc rationalization” sounds suspicious to me, and I think in general to most people. That doesn't mean that it can't be used to make a case. Parody cases rely on it for the exact reason that artists need not record their thoughts as they work.
I seriously doubt that 2 Live Crew was thinking along the lines described in the Campbell v. Acuff-Rose case when they wrote "Pretty Woman." For instance, the Supreme Court in Campbell v. Acuff-Rose states:
"2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies."
That's at least as lyrical a paragraph as 2 Live Crew's parody song itself. The S.Ct's explanation is meant to invoke what may have been going on deep down in "Luke Skyywalker's" brain as he came up with the "Pretty Woman" parody concept...but that doesn't mean that's what actually went on in his head. We can never know that, and like you suggest, maybe it isn’t even relevant.
By suggesting the analysis doesn't concern the defendant's deeper thoughts or psychology in creating the work really just gives an appearance of objectivity.
The law would never expect an artist to keep records of their thoughts on why they do what they do, as it requires within a corporate governance record keeping context for example. Therefore post hoc reasoning, or what may sound like post hoc reasoning, must necessarily come into play.
Maybe it shouldn't matter at all what the artist was thinking, certainly the Court would never admit that it is something they are really wondering about in a parody case because it is too subjective. The artist's thoughts in creating the work are not one of the 4 parody factors, but who can deny it's relevance?
A work should be judged as to its parodic nature apart from the intentions of the author you say, I believe you're right. But that does not mean there is actually a difference between the artist's "complicated motives" in creating the work and an effort to try and figure out what the artist was thinking via the reasoning the defendant ultimately uses to make their case (which is necessarily determined post hoc).
The defendant's reasoning in a parody case usually involves a mix of both the actual thoughts of the artist as they worked and post hoc reasoning trying to get at those motives, don't you think?
This potential case has already been decided in U.S. case law.
The case that recently decided this issue on the federal level was SunTrust Bank v. Houghton Mifflin Co. It's the case where the estate of Margaret Mitchell, the author of "Gone With The Wind" went after Alice Randall, author of "The Wind Done Gone" for copyright infringement. The case claimed that it was illegal for Alice Randall to take the story and characters of Gone With The Wind, put it in a blender and use them to make a new story that made a social and political statement.
The SunTrust Bank v. Houghton Mifflin Co. case was first affirmed for the plantiff but was overturned on appeal. The issues of that case aren't any different from this potential case. Can parody be defined as making a political satire or statement? Is it legal to take an entire previous work and use the characters and places and story line to make your own case for such parody?
The reason I know about all of this is because it is very personal to me. Alice Randall is my sister-in-law. And in the end, the plantiff not only lost the case, but decided to contribute to charities dear to the defendant.
You can read the case yourself. But if I were the holders of the Woody Guthrie copyright, I would read this case carefully and choose not to file. Because I guarentee that the defense will be using this case as the cornerstone of their argument.
http://news.findlaw.com/hdocs/docs/suntrust/wdg531 01petrhr.pdf
On a different tack, the consensus among folkies is that Woody Guthrie himself put his own "This Land" words to an existing tune, "Little Darlin' Pal of Mine". That tune was copyright by A.P. Carter and/or Ralph Peer, both of whom were notorious for recording and copyrighting materials which were already being sung by others. One source cites the melody going back to an older tune, a Baptist Hymn "Oh My Lovin' Brother".
(I tried to include links, but these were rejected by a spam filter... searching with terms like "little darlin' pal mine guthrie" will bring up multiple sources. For what it's worth, I've listened to the Carter Family's recording myself, and it does sound like the same tune.)
So... I guess you can write new words for old tunes before there were .MP3s, but not after there were .MP3s...? ;-)
Tracked on July 27, 2004 10:04 AM
Ernie (& friends) disagrees from Lessig Blog Ernie has a very nice criticism of my claim about the publisher's jab at JibJab. So does Martin. I hope they're... [Read More]Tracked on July 27, 2004 05:47 PM
This Use is Fair Use from IPTAblog CNN reports that Woody Guthrie's publisher is unhappy with the JibJab's animated take on "This Land is Your Land": Publisher peeved at political parody: TRO believes that the Jibjab creation threatens to corrupt Guthrie's classic -- an icon of American... [Read More]Tracked on July 27, 2004 07:13 PM
I Jab Your Parody, I Jib Your Satire from Blogcritics As RJ mentioned here, JibJab.com has a very funny, balanced even, parody/satire (the distinction is critical) flash animation movie... [Read More]Tracked on July 28, 2004 12:29 AM
Give Me Parody, or Give Me Lots of Money! from Blizza Blizza The JibJab video is making the current owners of Woody Guthrie's song very very angry. Some excellent points have been made on the side of parody, in blogs at Blogspot, Corante, and Lessig. Of particular note is the comment by... [Read More]Tracked on July 28, 2004 05:27 AM
Parody or not? from more signal - less noise Hopefully you have all checked out the great cartoon from the guys at JibJab by now. If not, hurry over before the lawyers have their way with it. Personally, I thought the ad was a parody of the classic Woody... [Read More]Tracked on July 28, 2004 08:29 AM
Are TV Networks "Inducing" Infringement by Promoting JibJab? from The Importance of... I'm disappointed in myself that I didn't mention this earlier. The JibJab controversy has an obvious nexus with the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). If, as the copyright holders for "This Land is Your Land" claim,... [Read More]Tracked on July 28, 2004 06:47 PM
This song is my song from Julie Saltman I haven't had copyright yet, so I'm only superficially familiar with this area of law, but that seems terribly restrictive. TRO argues that when people hear the song, they will think of goofy cartoon politicians, not the message of American pride and... [Read More]Tracked on July 28, 2004 07:11 PM
EFF Defends JibJab Animation as Parody from The Importance of... WIRED writes a story on the JibJab controversy, looking fairly closely at the claims for and against fair use (Sue You: This Song Is Our Song). See also, this shorter Newsday article ('This Land' was made for comedy). For a... [Read More]Tracked on July 29, 2004 02:19 PM
JibJabapalooza from The Importance of... The JibJab controversy continues unabated. Here are a slew of links. First, listen to 45 seconds of Guthrie's original, courtesy of the University of Virginia Library's Lift Every Voice exhibit (This Land is Your Land [MP3]). Original "The Importance O... [Read More]Tracked on July 29, 2004 08:55 PM
JibJabapalooza from unmediated The JibJab controversy continues unabated. Here are a slew of links. First, listen to 45 seconds of Guthrie's original, courtesy of the University of Virginia Library's Lift Every Voice exhibit (This Land is Your Land [MP3]). Original "The Importance ... [Read More]Tracked on July 30, 2004 12:54 AM
JibJabapalooza 2 from The Importance of... Image via Wikipedia and Lucas Gonze Commentary On Guthrie Borrowing the Underlying Tune A number of commentators have noted the importance for fair use analysis of Guthrie having apparently borrowed the underlying tune for This Land is Your Land from... [Read More]Tracked on July 30, 2004 04:01 AM
This Land Was Made for You to Sue from fling93 loves fishies Well, you have to be living in a cave if you haven’t seen this yet, and if you’re living in a cave, you’re probably not going to be reading this site. Nevertheless, just in case you’re the last souls in the country to miss this,... [Read More]Tracked on August 11, 2004 06:09 AM
Jib Jab Cites Blog in Reply Letter from blogbook.org - Citations Before seeking a declaratory judgment that "This Land" does not infringe Guthrie's original copyrighted work, Jib Jab responded less formally to Ludlow Music. In a letter, Jib Jab noted, "It is enough that the parody here is readily and objectively... [Read More]Tracked on August 23, 2004 05:49 PM
More idiocy: "This Land" parody incites copyright suit from Semioclast: Propaganda and Disinformation This post is something of a DIY kit: 1) Funny film 2) Lawsuit over said funny film 3) A rather important note about the copyright of the property in question 4) Commentary As Lessig suggets, we should change the law.... [Read More]Tracked on September 17, 2004 03:08 AM
Give Me Parody, or Give Me Lots of Money! from Blizza Blizza The JibJab video is making the current owners of Woody Guthrie's song very very angry. Some excellent points have been made on the side of parody, in blogs at Blogspot, Corante, and Lessig. Of particular note is the comment by... [Read More]Tracked on January 31, 2005 03:25 AM
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