Turns out Woody Guthrie lifted the melody of “This Land is Your Land” essentially note-for-note from “When the World’s on Fire,” a song recorded by country/bluegrass legends, The Carter Family, ten years before Guthrie wrote his classic song. Here’s a short snippet (380k mp3) of the song (the song can be found on the box set, The Carter Family: 1927-34). You don’t need to be a musicologist to hear what we’re talking about.
Now we’ve got nothing against Woody’s borrowing. In fact, it’s a part of the “folk process” that Woody himself championed. I can’t imagine that The Carter Family minded.
But in the letter threatening copyright litigation over JibJab’s animated political parody, “This Land,” Ludlow’s lawyer goes out of his way to attack JibJab for copying “the entire melody, harmony, rhythm and structure of the [sic] Mr. Guthrie’s song.”
Er, sorry there Ludlow, but actually, the entire melody, harmony, rhythm, and structure of “This Land is Your Land” doesn’t belong to you. And I’d like to think Mr. Guthrie would never have claimed credit for them, if he were still alive to ask.
It sure sounds similar to me, though I have a notoriously tin ear (and though I haven’t personally confirmed the MP3 file’s provenance). If that’s so, then the copyright owners can’t object to the taking of the melody (unless JibJab took some melody components that were in Guthrie’s version but not the Carters’).
On top of that, JibJab only took a few lines from the song — “This land is your land” / ” this land is my land” / “this land . . . me” (from “this land was made for you and me”). Copyright law doesn’t protect short phrases, and these thirteen words are close to the short phrases boundary. I suspect that the words used in this combination and this order are indeed copyrightable — thirteen is probably enough (a few cases suggest that even a few words might be enough, though that’s not clear). But that the taking is only of thirteen words, albeit important words, and not the lyrics — if indeed the theory about the tune coming from the Carters is correct — would definitely strengthen JibJab’s fair use defense.
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