This song is your song, this song is my song

No matter what you do with it, you can’t be held wrong

To renew the copyright, Ludlow waited too long

This song is made for you and me!

This mp3 contains a recording I made to prove a point. The point is—hey…wait, what are you doing? Stop downloading that! I just made it to prove a point, you’re not supposed to listen to it! No…wait…stop…or else I’ll come to your house and—sigh, oh, all right, but don’t blame me if playing it damages your computer, your hearing, or your sanity. Suzanne Vega, I’m not.

Anyway, the point is that Ludlow Music—the people who own the copyright to the music of Woody Guthrie—have just pulled a really boneheaded move, and it’s come around to get them in an uncomfortable spot.They bit the hand that fed them, they killed the goose that laid the golden egg, and now they’re hoist by their own petard. Oh, they are so hoist by their own petard, it’s like they took their petard and used it to run themselves up the flagpole atop the Empire State Building to see who salutes (but no one ever does).

Back in 1940, Woody Guthrie wrote a beautiful folk song, called “This Land is Your Land,” combining an easily singable melody and his unique talent for words with a hefty dose of patriotism to produce one of the most famous and most popular folk songs ever. The song endured through the ages; I even remember singing it out of a songbook in my elementary/middle school music classes. I liked it a lot, it was fun to sing, even if I didn’t entirely understand it at that age (I kept wondering what a “skyway” was). I also remember seeing the copyright notice at the bottom of the page, saying something like “©1956 Ludlow Music,” and wondering why the copyright notice was there instead of at the front of the book like most “normal” books. Over the years, the song has become a well-known and easily-recognizable patriotic anthem, right up there with “America the Beautiful” and “My Country, Tis of Thee.”

Which makes it only natural that, when the parodists at JibJab.com were looking for a song to which to set a flash-animated parody of George Bush/John Kerry mutual mudslinging, the duality of your and my inherent in “This Land is Your Land,” not to mention the patriotic overtones the song evokes, should bring it to mind. Quite to their surprise, the parody became a smash hit, being downloaded an estimated forty million times. (Not that it’s such a surprise to me. Even though it’s “not PC or even PG,” it contains a wicked sense of humor and, like the best political satire, pokes fun at both sides equally.)

You might wonder how JibJab thought they could get away with making use of the song in this way, given that the song was still under copyright. The answer is that parodies enjoy a special form of protection in copyright law, right alongside other forms of review and criticism. Parody, as long as it is a “valid parody,” is considered to be a form of fair use, which means that it is fair under the law for them to make use of others’ intellectual property. Parodist Weird Al Yankovic always obtains permission from artists before he parodies their songs just to be courteous, but under the law, he doesn’t really have to; when Coolio was upset over Al’s parody “Amish Paradise” (which Al recorded thinking he had permission due to a misunderstanding), being upset was about all he could do because the parody was legally protected.

Unfortunately, there is a gap between the theory of law and the actual practice of law. In Lawrence Lessig‘s book Free Culture, Lessig tells the story of a documentary filmmaker who needed to get permission to use a 4.5-second clip of The Simpsons that coincidentally appeared on a TV in the background of one scene. Fox wanted $10,000 to license it—a budget-breaking amount for the small filmmaker—even though it would arguably qualify as fair use. The filmmaker relates,

I did, in fact, speak with one of [Lessig’s] colleagues at Stanford Law School . . . who confirmed that it was fair use. He also confirmed that Fox would “depose and litigate you to within an inch of your life,” regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper pockets, me or them.

Similarly, Barry Manilow’s lawyers will not allow parodist Mark Jonathan Davis to sell his song “Star Wars Cantina,” a parody of Manilow’s “Copacabana,” despite the song (which can be downloaded freely) getting wide airplay on the Dr. Demento show (and on radio stations everywhere around the time of The Phantom Menace‘s theatrical release). As Lawrence Lessig has said, “Fair use is the right to hire a lawyer.”

With this in mind, it should not be surprising that, when JibJab’s parody came to the attention of Ludlow Music, they were about the only ones in the country who were not amused; feeling that its use in a political parody could do damage to the song’s reputation, they sent JibJab a cease-and-desist letter.

The irony is that the one person who would have had the most moral right to be concerned over one of Woody Guthrie’s songs’ reputation—that is, Woody Guthrie himself—was known to have used a remarkably permissive copyright notice on songs he 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.”

And Arlo Guthrie, Woody’s folk-singer son, has been quoted by NPR as saying that he found the JibJab parody to be hilarious and thought Woody probably would have as well.

Well, I really can’t speak for [my father]. I can just tell you that when I saw it a few weeks ago I thought it was one of the funniest commentaries if not one of the most directly inspired… I called my sister, I called my friends, I sent everybody a link to the site so that they could go see it. And we’ve all been laughing about it since then. I think my dad would have absolutely loved the humor in it.

What’s more, the melody of “This Land is Your Land” wasn’t even Guthrie’s to begin with—he apparently borrowed it from an earlier song by the Carter Family. Not that there’s anything wrong with that—melody-borrowing happens a great deal in folk music. You might even say our nation is built on it, since our national anthem “The Star-Spangled Banner” was set to the tune of a popular drinking song of the day. (Not to mention that “My Country, Tis of Thee” is just the British anthem “God Save the King” in disguise.)

The traditional English folk song “Greensleeves” shares its melody with the Christmas carol “What Child is This?”. The Elvis Presley songs “That’s All Right Mama” and “My Baby Left Me” share a melody. I could go on and on, but the point here is that the melody of “This Land is Your Land”—which was the only part of the song that JibJab actually used verbatim—wasn’t even written by Guthrie to begin with and would probably already be in the public domain due to its use by the Carter Family.

Feeling that they were in the right due to the principles of fair use, JibJab and the Electronic Frontier Foundation vowed to fight Ludlow in court, and asked a judge to decide pre-emptively that the parody qualified as a fair use.

But as it happens, the matter never got that far. When the EFF was searching for evidence in the Library of Congress’s archives, they turned up evidence that the song had actually not been first published in 1956 as Ludlow claimed—but rather in a pamphlet published in 1945. The 28-year copyright term that was in place during that period started at the time of the song’s first publication. Unaware of the earlier publication, Ludlow filed for copyright renewal in 1984—eleven years too late. Once a work enters the public domain, even if by accident, it can never be re-copyrighted. “This Land is Your Land” entered the public domain in 1973—the same year I was born. (Ludlow has subsequently and rather hastily settled with JibJab without the matter reaching court.)

So, “This Land is Your Land” has actually been in the public domain for as long as I’ve been in the world. All those years ago when I was singing the song in elementary school and wondering at the copyright notice in the songbook—that copyright notice was actually invalid and nobody knew it!

Since it’s in the public domain, I can take that song and do whatever I want with it. I could use it in a parody, like JibJab (or like User Friendly), but that’s just the beginning. I could record my own “straight” performance of it (as I did, thanks to Eric A. Burns of Websnark for posting the lyrics so I had them close to hand), and not have to pay Ludlow the compulsory licensing fee. I could write another verse to it (as I did) and sing that, too (as I did). I could write a verse extolling the virtues of each of the fifty states, plus one each for the District of Columbia and Puerto Rico. I could write “This Land is Your Land” fanfic, in which Woody Guthrie goes a-chasin’ his shadow (“Hey, come back here, you…”) out across that roadmap (“How are you supposed to fold a map this big, anyway?”) and encounters waving wheat fields (“Hey, it’s good to see you, too!”) and dancing corn fields (“The Charleston? Who’d have figured?”). I could even sing it at the top of my lungs while walking naked backward down main street at high noon, and I’d only get in trouble for the naked part—they couldn’t touch me for a public performance of the song, since it’s now in the public domain. This song really is “made for you and me.”

Filmmakers can make “This Land is Your Land” movies (like Kenny Rogers did for his own song, “The Gambler”). Ad agencies can use “This Land is Your Land” in TV commercials. School songbook publishers can use “This Land is Your Land” without paying licensing fees. In short, anyone who wants to do anything with the song can. And what’s more, their uses of the song would create new derivative works that would be copyrighted to them for as long as copyright is nowadays (which is apparently going to be forever and a day if the Mouse has anything to say about it, but that’s a subject for another rant).

And the beauty of it all, the icing on the top of the thirty-story layer cake, is that, if only Ludlow Music had kept their big mouth shut, if only they’d said, “We don’t like that parody, but we realize they have the legal right to make it by fair use,” rather than throwing their legal weight around and hoping the little guy would chicken out instead of ponying up legal costs, nobody would ever have known that “This Land is Your Land” entered the public domain more than thirty years ago. They could have gone on collecting license fees and royalties on what must surely have been the most popular song of any in their collection (it has no fewer than 31 different cover versions for sale on the iTunes Music Store alone) and nobody would have been the wiser. But they tickled the sleeping dragon, and thus slaughtered their own cash cow. (Okay, okay, I’ll stop mixing metaphors now. Don’t hit me.) They may even have to pay back all the royalties and license fees they’ve received over the last thirty-one years (though I’m not a lawyer so I can’t say for certain—and the I.P. lawyer friend of mine I’ve emailed to ask hasn’t yet gotten back to me; I’ll update when and if he does).

So, sometimes the good guys do win. And that’s cause for celebration.

Incidentally, as to the verse at the top of this post which is my own derivative work from Guthrie’s, it’s ©2004 by Christopher E. Meadows…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.

[Disclaimer: I’m not a lawyer, don’t take anything in this entry as legal advice, it’s just my educated opinion.]

Advertisements