Sunday, August 01, 2004
Most of you have heard the terrific parody of "This Land Is Your Land" at jibjab.com, which nicely zings both major party candidates (and the previous president and Madame DeFarge as well). It was fun and not mean-spirited in any way. However, according to the EFF:
The two brothers who created the fantastic "This Land" parody -- sending up President Bush, Senator Kerry, and the current state of American democracy to the tune of "This Land is Your Land" -- have been threatened with a copyright lawsuit. You see, the classic American song, penned by renowned leftist folk singer Woody Guthrie in 1940, is apparently still under copyright. And the copyright is now in the hands of Ludlow Music, Inc., a unit of The Richmond Organization.
If this isn't fair use, it's hard to imagine what is. One can only imagine what Woody himself would have said, who once used this 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."
Professor Larry Lessig has often complained that "fair use is the right to hire a lawyer." Well, it looks like yet another parodist interested in free expression will be called upon to risk litigation in order to vindicate our First Amendment rights. EFF has been contacted by the fine folks at Jib Jab, who are considering their options. Stay tuned.
Needless to say, this stirred up some memories of reading the story of the time Tin Pan Alley decided to take on Mad Magazine for its song parodies. The parodies themselves were suitably grotesque takeoffs on the original lyrics, substituting "Louella Schwartz Describes Her Malady" for "A Pretty Girl Is Like A Melody". Irving Berlin (who by all accounts was a real nasty so and so) led the effort against Mad. Needless to say, no sane person could conceivably confuse the parody lyrics with the originals, and Mad clearly credited the original copyrights. So where was the infringment?
According to Irving Berlin et al. v. E.C. Publications, Inc. (329 F. 2d 541 (2d Cir. 1964) there wasn't any.
Most contemporary discussions of the treatment to be afforded parody were stimulated by two related cases which arose in the Southern District of California. See Loew's, Inc. v. Columbia Broadcasting System, 131 F.Supp. 165 (S.D.Cal.1955), aff'd sub nom. Benny v. Loew's, Inc., 239 F.2d 532 (9th Cir. 1956), aff'd by an equally divided court, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958); Columbia Pictures Corp. v. National Broadcasting Co., 137 F.Supp. 348 (S.D.Cal.1955). In the Loew's case, television comedian Jack Benny was alleged to have infringed the copyright upon 'Gaslight,' a motion picture which he satirized in a televised sketch entitled 'Autolight'; in the Columbia litigation, 'From Here to Obscurity,' a television burlesque by comedian Sid Caesar upon the screen version of 'From Here to Eternity,' was at issue. Although the same District Judge wrote the opinions in both cases, the plaintiffs were permitted to recover for the Benny parody, but were denied relief in the Caesar case.
The distinction between the two situations, Judge Carter reasoned, turned on the relative significance of 'substantiality' -- in terms of both quality and quantity -- of the material taken from the original motion pictures. In both cases, the Court recognized in painstaking and scholarly opinions the historic importance and social value of parody and burlesque; in both, it conceded that the parodist must be permitted sufficient latitude to cause his reader or viewer to 'recall or conjure up' the original work if the parody is to be successful. But in Benny's case, the Court concluded, this license had been grossly exceeded. Not only had the parody followed the general plot of the original motion picture, but specific incidents and details had been copied and extensive portions of the dialogue had been reproduced verbatim. It was this borrowing from the original to a far greater degree than that required if the parody is to 'recall or conjure up' that original, which caused the court to reject the defense of 'burlesque'; and, it was in this context that the Court of Appeals for the Ninth Circuit affirmed Judge Carter's determination.
But despite Benny's 'borrowing' of substantially more material from the copyrighted original than was necessary for a successful burlesque, the Benny holding and its accompanying dictum suggesting that parody could not be justified as 'fair use' was roundly criticized by many commentators. See, e.g., Comment, Parody and the Law of Copyright, 29 Fordham L.Rev. 570 (1961); Note, Parody and Burlesque -- Fair Use or Copyright Infringement?, 12 Vand.L.Rev. 459 (1959); Note, Parody and Copyright Infringement, 56 Colum.L.Rev. 585 (1956). But see Selvin, 2 Parody and Burlesque of Copyrighted Works as Infringement, 6 Copyright Soc'y Bull. 53 (1958). Several scholars believed that the decisions of both the District Court and the Court of Appeals were unduly restrictive; the fear was expressed that the art of parody, which has thrived from the time of Chaucer to, on a somewhat different level, the current vogue for the lyrics of Allen Sherman, would be stifled if its propriety were tested entirely by the precise amount appropriated from the original.
In the present case, it is not necessary to determine whether parody and satire require a greater freedom than that afforded by the 'substantiality' test outlined in Benny. We believe in any event that the parody lyrics involved in this appeal would be permissible under the most rigorous application of the 'substantiality' requirement. The disparities in theme, content and style between the original lyrics and the alleged infringements could hardly be greater. In the vast majority of cases, the rhyme scheme of the parodies bears no relationship whatsoever to that of the originals. While brief phrases of the original lyrics were occasionally injected into the parodies, this practice would seem necessary if the defendants' efforts were to 'recall or conjure up' the originals; the humorous effect achieved when a familiar line is interposed in a totally incongruous setting, traditionally a tool of parodists, scarcely amounts to a 'substantial' taking, if that standard is not to be woodenly applied. Similarly, the fact that defendants' parodies were written in the same meter as plaintiffs' compositions would seem inevitable if the original was to be recognized, but such a justification is not even necessary; we doubt that even so eminent a composer as plaintiff Irving Berlin should be permitted to claim a property interest in iambic pentameter.
A most interesting analysis of the situation. The publishers who sicced their attorneys on Mad back in the 60s of course felt that a Mad parody devalued their product, rather than possibly enhancing sales of their flagging product. However, even the lower court intelligently realized that Mad was only doing an affectionate parody, and ruled against them on only two songs, parodies of "Always" (an Irving Berlin song originally dedicated to his wife) and "There's No Business Like Show Business" which was turned into a paen to the current recession entitled "There's No Business Like No Business" (both of which were determined by the lower court to have revolved around the keyword in the original title, and thus coming under the Benny decision). The logic of the lower courts was that both parodies needlessly took too much from the originals (as in the Jack Benny case).
Quoth the Court of Appeals:
For, as a general proposition, we believe that parody and satire are deserving of substantial freedom -- both as entertainment and as a form of social and literary criticism. As the readers of Cervantes' 'Don Quixote' and Swift's 'Gulliver's Travels,' or the parodies of a modern master such as Max Beerbohm well know, many a true word is indeed spoken in jest. At the very least, where, as here, it is clear that the parody has neither the intent nor the effect of fulfilling the demand for the original, and where the parodist does not appropriate a greater amount of the original work than is necessary to 'recall or conjure up' the object of his satire, a finding of infringement would be improper.
A very instructive decision, that on the principle of stare decisis (and no I'm not a lawyer, but I did take a couple of business law courses in college) would seem to apply to this day. The problem of course in this world is that people like Senators Hatch and Hollings who have thoroughly proved themselves in the pocket of the content providers are willing to legislate around legitimate uses of intellectual property and legislate away the rights of people to use intellectual property.
One of the great mysteries that's always puzzled me is why content providers are so reluctant to release their catalogs such that they're available on an ongoing basis. Disney, for example, held back large portions of its catalog for years, on the pretense of increasing demand, likewise with Apple Corps holding back Beatles rarities such as Let It Be and the Shea Stadium concert. I don't pretend to understand marketing's role in this, however, in the case of cultural icons such as Disney and the Beatles, demand is relatively inelastic (at least until the fan base gets to the point where Depends are of more interest). Therefore, the content providers will have a relatively stable source of income from the content, instead of the spiky nature of revenue from "special releases" and such that have huge sales in the first week or so and then fall off exponentially.