Several people e-mailed me about the This Song Is My Song complaint. Some weren’t wild about the distinction between using a song to mock or comment on it, as opposed to using a song to mock or comment on something else. Well, maybe that isn’t that great a distinction, but it’s what the Supreme Court set forth. Here’s the heart of the Court’s argument:
The germ of parody lies in the definition of the Greek parodeia . . . as “a song sung alongside another.” Modern dictionaries accordingly describe a parody as a “literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,” or as a “composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.”
For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. [footnote: Satire has been defined as a work “in which prevalent follies or vices are assailed with ridicule,” or are “attacked through irony, derision, or wit.”]
So, rightly or wrongly, if the JibJab item is seen as commenting entirely on Bush and Kerry, and not on This Land Is Your Land, the fair use argument will probably be weaker than the argument (which basically won) in Harper & Row.
Ah, but does the item comment on This Land Is Your Land? The Court said that the test here is “whether a parodic character may reasonably be perceived” — and again remember that to the Court, “parodic” meant commenting on the borrowed work. The Court reasoned that
While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 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. . . .
Nick Morgan argues that something similar is present in the JibJab use of This Land Is Your Land:
It lampoons the idealistic notions of American unity in the original song, throws in a comic, but scolding, reminder that “this land” isn’t really the land of Native American’s anymore, and contrasts the silly geographical themes of the song with our childishly divisive political climate.
That’s certainly the argument that I’d make if I were JibJab’s lawyer, but I doubt that it would fly. It seems to me that very few people would understand the cartoon as even partly “lampoon[ing]” Woody Guthrie’s work; I think nearly all of them would see it as entirely a lampoon of Bush and Kerry. The joke isn’t that there’s something naively idealistic about what Guthrie sang — it’s that there’s something amusing (and perhaps amusingly unidealistic) about modern politics.
Now of course figuring out the True Meaning — or even a Reasonably Perceptible Meaning, since the Court’s analysis acknowledges that a song may have multiple meanings — of comedy is a questionable proposition. Perhaps the Court was wrong in calling on judges (in the first instance, and in the first and last instance in preliminary injunction hearings, where there’s no jury) and perhaps juries (if the judge concludes that there’s a genuine issue of fact as to whether the meaning is reasonably perceptible, and the case comes to trial) to draw such distinctions. But that’s what the test calls for; and my sense is that most judges and juries would treat the JibJab item as a “satire” of Bush and Kerry, and not a “parody” of This Land Is Your Land.
Note, though, that I’ve tried throughout (see here and here) to speak in terms of probabilities, not certainties — for better or worse, that’s what the often extremely vague fair use inquiry requires us to do. I stick by my original analysis, which is that the copyright owner probably has the better of this case. But I even more firmly stick by my tentativeness. The one thing you can be pretty sure of here is that anyone who says “JibJab’s use is obviously fair” or “JibJab’s use is clearly unfair” isn’t quite right.
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