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More info on JibJab

I don't have much time to pontificate about this, but I just noticed some more updates on the JibJab issue I wrote about earlier today. Thanks again goes to Lawrence Lessig's blog (via lawrencelessig) for the links.

Lessig's latest blog entry points out a criticism of Lessig's claims that, if accurate, would indicate that the JibJab piece is indeed parody, and thus protected under "fair use" clauses in copyright law. On the other hand, Chris Cohen agrees with Lessig and claims that the piece is satire, which is not protected under "fair use" clauses. There is a lot more interesting information about the legal difference between parody and satire at those links.

Also, JibJab has contacted the EFF for legal help on this issue. Good for them! They point out that Woody Guthrie used the following as his standard copyright notice:

"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."

I really hope JibJab comes through this a winner. Getting the help of the EFF will go a long way to helping them out.

Comments

( 9 comments — Leave a comment )
mayna
Jul. 27th, 2004 05:46 pm (UTC)
The song reminds me distinctly of Weird Al's songs... and while Weird Al doesn't poke fun of Michael Jackson in "Eat It", he does use the same tune with changed lyrics.
drmellow
Jul. 27th, 2004 05:52 pm (UTC)
Agreed, but Weird Al always gets permission from the copyright holder before doing his parodies. In this case, JibJab didn't get permission.

Also, from what I've read today, I think Weird Al's pieces would legally be defined as "parody," which is protected under "fair use" provisions in copyright law. JibJab's piece looks (to me) more like "satire," which doesn't enjoy the same protection.

*shrug* I really don't know. I'm not anywhere near qualified as a copyright lawyer to render legal opinions on the matter and the more I read about it, the more confused I get. But something about how all of the legal implications of this work out should simply "make sense" to the common person. The fact that it doesn't make sense is appalling.

The more I think about it, the more irritated I get.
mayna
Jul. 27th, 2004 05:58 pm (UTC)
Yeah I read awhile ago that while Weird Al DOES get permission (usually they're flattered) he's not legally required to.

I don't know if the main difference is that they used the title "this land" and didn't change it like Weird Al does, or really how one classifies as satire while the other doesn't, because other than that, they're very similar. They didn't use old recordings, they used someone else singing and used different words to poke fun at Bush and Kerry. Weird al sings the songs himself, using different lyrics to poke fun at whatever topic seems to fit in the melody the best.
meep
Jul. 27th, 2004 06:33 pm (UTC)
Perhaps the reason Weird Al pays royalties, and asks permission, is that he writes tunes, too (none are his most popular, but perhaps you've heard "You Don't Love Me Anymore" or "Christmas at Ground Zero", both completely original songs). Weird Al's being an ethical businessman, and is covering his butt legally. One of his bits, on every albums, is doing a polka medley of pop tunes, words unchanged... which would definitely require permission.

As for this suit... I suppose that the artists' intent isn't legally binding on the estate, but what about Creative Commons licenses? People online copyright their stuff but give open permission for use, as long as credit is given. Would some greedy estate in the future go against these original wishes? Are they bound by the artists' statements?
drmellow
Jul. 28th, 2004 07:50 pm (UTC)
Well, I think in this case that Guthrie's wishes are legally irrelevant because I'm pretty sure that the copyright for that song is not held by him, or his relatives, but by a publishing company. As far as your other questions, yes -- I think if a Creative Commons license is applied to a work, then it's binding until the owner changes it. But I'm not entirely sure.
bodnej
Jul. 27th, 2004 09:28 pm (UTC)
The question becomes, how do you fix copyright law so that people who create stuff get compensated, but you still have the ability for other people to create new, derivative works? The parody exception strikes me as unfair; why is it OK to sample a song to make fun of it, but not to improve it?

I don't know if Lessig has proposed this already, but a compulsory license (with the fee paid as a percentage of net revenue) would be fair. And the new version has to be substantially different to a reasonable person (no changing one word in a book and calling it a new work). But if the JibJab guys make a ton of money off their parody (not that I think they will), why not give some fraction of that to the estate? It sounds like Guthrie wouldn't have cared, but he doesn't own the copyright. He could have released his work into the public domain, but he didn't, so now we have to deal with greedy relatives. C'est la vie.
drmellow
Jul. 28th, 2004 07:47 pm (UTC)
I'm pretty sure Lessig has proposed (or is in favor of) compulsory licensing. The suggestion you present for basing the fee on net revenue poses an interesting problem, however -- how do you determine net revenue? It didn't cost me anything to watch JibJab's funny parody/satire, so there's no revenue at all, is there? What if JibJab sells stuff at their website and are using the parody/satire to help draw people in the door -- does that mean the revenues of everything they sell at their web store counts? What if I came to their web store with no knowledge of the parody/satire -- is my sale exempt? *shrug* I don't know the answer to those questions, either, but I think some sort of compulsory licensing is in order.

Or, maybe not. As a content creator, I may not want anyone to be able to do anything with my work without my approval. Shouldn't I be able to have that right, at least for a limited amount of time? Yes, I think so -- I think that's what copyright was originally intended to protect, and I think that's a good form of protection.

Another note, I don't think we're dealing with greedy relatives here in Guthrie's case. I think the song's copyright is held by a publishing company, not by the Guthrie estate, so we're really just dealing with big business, which is why it's not surprising at all that lawers got involved.
sidelobe
Jul. 28th, 2004 11:57 am (UTC)
There is art for the love of creating it and there is art as a source of money. That isn't to say that a "real" artist (one who does it for love) shouldn't get paid for their art. Rather, I'm making a point that while every artist wants to see their work displayed and enjoyed, some seem to want exposure for the money, some seem to want exposure because they like their work.

The use of Guthrie's song in this satire shows that it is universally recognized. It already enjoys the greatest possible exposure. JibJab's work is a separate work of creativity. It seems to me that basing it on a song that is universally known is rather like basing it on a musical scale that was the invention of a famous composer who never considered copyrighting it.

By the way, I noted a reference to Seuss in Lessig's blog. I remember that Lessig was a pseudonym of Theodore Gissel (sp?), aka Dr. Seuss. Is there a relation?
drmellow
Jul. 28th, 2004 07:55 pm (UTC)
Basing it on a song vs. basing it on a musical scale is irrelevant, because the song currently enjoys copyright protection while the scale does not. It doesn't matter that the song is universally known or not -- it's still under copyright protection. Exposure should have nothing to do with copyright. Additionally, the copyright on the scale would have long since expired.

I don't think there's a connection between this Lessig and Seuss (except that Lessig is Gissel spelled backwards).
( 9 comments — Leave a comment )

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