Do as I Say, Not as I Do

I apologize for reminding everyone about the horrific election we had here in the states last year, but you may recall that roughly a year ago the people at JibJab made a hoakey video about President Bush and John Kerry set to the tune of "This Land is Your Land" by Woody Guthrie. As you also may recall, Ludlow Music, who owned the copyright for the song, filed a ridiculous lawsuit against JibJab for not obtaining proper permission to use the music. JibJab ended up hiring the wonderful people at the EFF to help defend their right to fair use and argued in their pleading that:

"(Ludlow Music's threats) have jeopardized (JibJab's) First Amendment-protected right to free speech and its right to disseminate that speech via its Internet hosting facilities. (JibJab) therefore seeks a judgment that its artistic expression is protected by the First Amendment and copyright's fair use doctrine, before that expression is silenced by (Ludlow's) threats."

Inexplicably, as noted by the people at the Berkeley Intellectual Property Weblog, it appears that the Jib Jab people have now turned around and sent a cease and desist letter to The Black Lantern for using 9 non-contiguous seconds of the "This Land" video in his mashup of the Legendary KO's "George Bush doesn’t like Black People". To make matters even more surreal, JibJab's lawyers in the case  (Goldring, Hertz, Lichtenstein & Haft) like to collect "Bill of Rights" awards from the ACLU in their spare time (clearly these awards only honor amendments 2 through 10).

In JibJab's original lawsuit with Ludlow Music, they made their argument for fair use based on a few arguments (very nicely summarized here):

1)  JibJab's work was supposedly "clearly transformative" and non-commercial in nature (the JibJab people argue they made no money)

2) "Regarding the amount of copying Jib Jab argued that the 'quantity' of borrowing is not relevant where a parody is transformative and easily perceptible"

3) Jib Jab asserted that its video did not harm the market for Woody Guthrie's original work.

The Ludlow Music vs. JibJab case ended not because of any of the above arguments, but because the EFF discovered that the copyright on the Woody's music was never renewed in 1973 and thus had fallen into public domain.

Now let's look at how these arguments stack up against Black Lantern's use of the JibJab material in his video:

1) The Black Lantern video is non commercial in nature (unlike JibJab the Black Lantern sells no merchandise on his site) and is "clearly transformative".

2) The Black Lantern video borrows 9 non-contiguous SECONDS of material while the jib jab clip consists of 2 contiguous MINUTES of its source material. Each of the offending clips in the Lantern video is no more than 2 seconds.

3) The Black Lantern video clearly does not harm the market for JibJab's original work.

Sounds like the Black Lantern should call up the EFF to me. The Black Lantern has since re-edited his video to remove the supposedly infringing 9 seconds of content. A quick googling reveals the following gem from Evan Spiridellis of JibJab: "I guess if you’re asking about free speech, I’d have to say, God bless America".

Comments

[23wolves]

adjust your jib for a jab in the eye. a bummer.

[cp]

From: [me]
To: [email protected]
Date: Oct 16, 2005 9:41 AM
Subject: Shame on you!

Shame on you for your lawsuit against The Black Lantern for using 9
non-contiguous seconds of the "This Land" video in their mashup of the
Legendary KO's "George Bush doesn't like Black People". After the EFF
was good enough to support your own cause, for you to turn around and
be the bad guys you yourself protested is the height of hypocrisy. Be
sure that every time I find a link to one of your videos, I will be
sure to post a link to the documentation of your shameful activity.

Sincerely,

[me]
an avid blogger and netizen

[Bengals Boy]

First, thanks for hunting this information down. When I read this on Boing Boing I was surprised that this would even be an issue.

Second, on what basis does Jib Jab think this will help their internet karam? Seriously. They garnered a ton of publicity and goodwill for their efforts to work within OUR CULTURE'S history by building on created works. It was marginally political free speech, but the video on Black Lantern was political free speech. It's chilling.

Again, thanks for your efforts. They are much appreciated.

[PHE]

Unfotunately, the Jib-Jab gang has lost their edge along with their sense of humor and fair play. The latest cartoons are not nearly as funny as "This Land" and "Good to Be In DC". It wouldn't surprise me if their culture has changed to something a good deal less irreverent and a good deal more corporate. Too bad. They were funny once.

[Paul Robichaux]

I can assure you that the ACLU isn't handing out any "Bill of Rights Awards" for support of the Second Amendment.

[Bill Ofrights]

Paul, maybe that's because the 2nd ammendment's not under attack? you might have your NRA talking points but pretty much every US court decision ever backs me up.

(and when was the last time you saw a well-regulated militia sued out of existence?)

[Erik]

How is this "clearly transformative"? A parody like the original JibJab one is obvious in its transformation because it changes the entire meaning of the original song. How does appropriating JibJab clips for a video mocking George Bush transform them in any way? The original JibJab clips were mocking the president; the clips in the song were used to mock the president. It's not a case like in the "Shining" trailer where they bothered to transform original video into something new, all these guys did was piggyback on and co-opt JibJab's mojo without making it in any way different.

Hypocrites my ass.

[moot]

To: [email protected]
Subject: BOO

BOO BOOO BOOOOO

You had love in your hands, and you gave it up.

Your true love lives and you marry another

True love saved you from the Fire Swamp, and you treated it like garbage. And that's what you are, the Queen of Refuse! the Queen of Slime, the Queen of Filth, the Queen of Putrescence. Boo! Boo! Rubbish! Filth! Slime! Muck! Boo! Boo!

[David Dixon]

My letter to [email protected]:

Someone used 9 seconds of your "This Land" animation for a not-for-profit commentary, and you threaten to sue?

At least do what we do... when someone tries to sell our free material, we send them a polite note privately. We don't send a cease-and-desist, because that's what an asshole would do. If someone appropriates our material for a nonprofit use (such as for a mashup), we say.. go right ahead, just give us credit. Treat your fans with respect, and they will do likewise. It's worked for us.

I wonder how many over at the EFF are sorry now for defending you, and, with you as an example, how likely they'll be to defend someone else's free-speech rights depending on how co-opted they think they will become. I've enjoyed your animations since 2001, and was proud to see you triumph over Ludlow (with the EFF's help), and even prouder to see you hit the mainstream with your recent Leno appearance. Unfortunately, it appears that you have been sucked into the system that does not allow *any* infringement, no matter what its scale or significance may be. You have become small-minded controllers of content, with the emphasis on control, not content.

You should be ashamed.

David Dixon
Webmaster of Puppets
Beatallica.org

[Rick]

The JibJab lawsuit was also based on the fact that the copyright for This Land is Your Land had expired and Ludlow Music had not renewed the copyright in a timely manner therefore JibJab was permitted to use the song since it had been considered legally to be in the public domain.

It should be noted that since the lawsuit between the two parties has been settled Ludlow has since reapplied to copyright all of Guthrie's songs that they control.

[Andrew]

This legal bullshit will never end. The niceties and finalities will be debated until Armageddon but in truth, if a few wee seconds of your stuff in someone else's stuff is going to fuck up your life and your income I'd like to see concrete proof. If not, SHUT THE FUCK UP and get on with your own shit.

As for Guthrie, I can't exactly see him taking anyone to court for "intellectual property infringement".

[Keely Thomas-Moore]

Funny how people only interpret the law as it applies to their benefit. I wish that the Black Lantern has stood up to Jib Jab a little bit longer. I would have loved to have the have to acknowledge their double standard. I see stuff like this all the time in employment situations. I guess that's why we have Utah employment law and stuff like that. ( http://www.fabianlaw.com/practice/Employment )