I’m sure you’ve seen the very funny cartoon done by the folks at JibJab that uses a parody of “This Land is Your Land” as a vehicle to have some fun with both candidates and, poignantly enough, imply a desire for bipartisanship in this election year. And naturally, somebody had to come along and try to spoil it.
The copyright holders of “This Land is Your Land”, Ludlow Music, Inc. (apparently a tentacle of The Richmond Organization) have threatened a lawsuit, claiming damage to the original song. JibJab has consulted the Electronic Freedom Foundation and their own lawyer. The obvious defense of this is fair use, particularly for satire and parody.
One of the first cases to set this standard was from Mad Magazine‘s “Sing Along with Mad” songbook, which published sheet music with new lyrics to songs such as “There’s No Business Like Show Business” and “If You Knew Susie” (remade into “If You Knew Hitler” - the UGOI aren’t subtle). Lawyers for the Music Publishers Protective Association claimed that only copyright owners had the right to make parodies of their songs, suing publisher Bill Gaines, Mad and much of it’s editorial staff to the tune of $25 million in 1961, a dollar for each infringing song in the million copies that sold.
In the first trial before US District Court, the Judge found for Mad in all but two of the songs, the aforementioned “There’s No Business…” and “Always”, believing that those two were too similar in theme to the originals to be fair use. This wasn’t good enough for the music publishers who appealed and quickly lost their case entirely with the US Court of Appeals finding:
“We believe that parody and satire are deserving of substantial freedom - both as entertainment and as a form of social and literary criticism.”
The MPPA continued to push the case, but the Supreme Court refused to hear the appeal. The case made the satire and parody of song lyrics protected fair use. In my admittedly biased layman opinion, JibJab should have no trouble actually wining this case if it went to trial. But in some ways the damage has been done because of the need to retain lawyers to handle such a silly suit. Though I don’t think Weird Al is nervous about his next parody album, it could make some people blink before creating funny works of all kinds… simply because they may not have the funds to retain the lawyers they would need to protect their rights. And even in corporations, there are few maverick publishers like Bill Gaines who would fight back to protect the right to parody or satire anything. The lawsuits they might draw just makes it too prohibitive.