Thursday, July 29, 2004

EFF defends Jibjab's use of Guthrie as Parody, Fair Use

On Monday, I blogged about the conflict over Jibjab's use of Guthrie's "This Land Is Your Land, This Land Is My Land." Well, it appears as if the EFF will defend Jibjab and their parodic use of the song. Yet another wonderful step by the EFF. Fred von Lohmann's excellent response letter clearly states why Jibjab's use is fair, and addresses what amount to a few weak arguments and very narrow interpetations offered by the copyright owners. The EFF also has the complaint letter available.

My question on Monday as to how this argument would work in court really hinged on the interpretation of the song and its lyrics: this is one of the points of contention you can see if you read both the letter from council for the copyright owner and von Lohmann's response. Personally, I can see the parodic interpretation, and obviously EFF staff see the parodic interpretation. The interpretation offered by LiCalsi and Ludlow Music, Inc., on the other hand, is quite different. von Lohmann's response on this point really clarified things for me, though. He writes:

The question, simply put, is whether the "parodic character may reasonably be perceived." Campbell v. Acuff-Rose, 510 U.S. at 582. The question is not whether Jib Jab intended "This Land" purely as a parody of Guthrie's original. See Abilene v. Sony, 320 F .Supp.2d at 90. Nor is the question whether your client perceived the parodic meaning. See Mastercard v. Nader, 2004 WL 434404 at *13 (parody "may be subtle rather than obvious"). It is enough that the parody here is readily and objectively perceptible, as demonstrated by the fact that a variety of commentators already perceive it clearly See Abilene v. Sony, 320 F .Supp.2d at 91 (music reviewers perceived the parody).

link via Boing Boing and the News sidebar at O'Reilly's

- posted by laurie @ 7/29/2004 02:00:00 PM
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