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This Song’s Not Your Song

Chris Cohen on This Land is Your Land video and whether Jibjab can be sued for copyright infringement:

This song is my song,
this song’s not your song,
cuz I got a lawyer
and you don’t got one!

I saw you use it,
I saw you abuse it,
This song’s not made for you and me.

From Woody Guthrie himself:

“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.”

Cohen comments:

What’s the difference between satire and parody you ask? Well, a satire targets something other than the work that is borrowed from. For instance using a Dr. Suess style of peotry to write a book that attacks OJ Simpson (The Cat is Not in the Hat case), or reworking a commerical for “The Apprentice” to attack Bush. Parody is when the work borrowed from is the one being attacked or referenced. Parody is ok with copyright law, satire is not. But then…The Apprentice-Bush commercial may actually be permissable because it is political speech and courts give wider latitude in such cases. A court may even find this anti-Bush ad to be a parody although that seems intellectually ingenuine. To be fair there are arguments on each side, for instance the maker of the ad could claim that it was partly parody because it is a play on the Donald’s incredible ego (he thinks he can fire the president) or the stupidity of the contestants on the show (Bush is as pathetic as they are). The work need be only partly parody after all.

The interesting question here is how you assess damages to authorized use of copyrighted material. Do you determine damages as a percentage of what the borrowing work made? (In this case, it was only a thousand dollars or two)? Or do you determine it from the damage done to the copyright holder’s copyright? The music company could prove for example that “This Land” earned the company X number of dollars in royalties over the past years and make projections about its future income potential.

The first criteria is objective, although one may argue that it really doesn’t address the issue of harm done to the copyright owner. The second criteria is more subjective and could also a chilling effect on all speech. If Time/Warner could sue you for unauthorized use of Harry Potter (a billion dollar empire), and the judge decides that Time/Warner has suffered damages as a result, even a piddly assessment of $100,000 in damages could bankrupt any individual and ultimately silence them.

BTW, if the song was written in 1940, it will go into the public domain in 2035!

Update: A slashdot forum referred me to this summary of the overturning of the She Done Him Wrong case

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