- When was the last time you saw John Kerry on his knees
before world leaders, clad in S&M gear and with a ball gag in his mouth?
Or eyed President Bush looking sheepish in a red dunce cap?
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- Chances are it was sometime this past week on national
TV and maybe 10 times before that on the Internet, thanks to JibJab, a
site that is posting animators Evan and Gregg Spiridellis' latest creation,
This Land.
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- The film features Kerry and Bush dissing each other like
boys on a playground to the tune of Woody Guthrie's classic song, "This
Land Is Your Land." It's made it around the world, with enthusiastic
viewers commenting about the film on the site's blog from as far away as
the Netherlands, New Zealand and Guam, and its historical value has been
noted by the Library of Congress, which on Tuesday e-mailed the Santa Monica,
California-based Spiridellises asking to add the animated short to its
archives.
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- But while about 25 million viewers have been clogging
JibJab to chuckle at the film's South Park-like Flash animation and juvenile
insults (Bush labels Kerry a "liberal sissy," and Kerry responds
by calling Bush a "right-wing nut job"), the Spiridellises aren't
exactly laughing their way back to the drawing board.
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- In the wake of their short's popularity, which began
soon after its July 9 Web release and has been punctuated by appearances
and mentions on almost every major U.S. news show, the brothers found themselves
in a legal skirmish with Ludlow Music, which, Ludlow attorney Paul LiCalsi
said, owns the copyright to Guthrie's famous tune.
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- Ludlow Music is a unit of music publisher The Richmond
Organization. JibJab Media, the proper name of the Spiridellises' company,
never got permission to use Guthrie's song in This Land, and Ludlow Music
is telling them to pull down the short.
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- About a week ago, the brothers were served with a cease-and-desist
order on behalf of Ludlow Music, demanding they remove This Land from their
website. LiCalsi said Ludlow has not filed a lawsuit yet against JibJab
and hopes to resolve the case without taking that step.
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- He declined to state any deadline by which Ludlow Music
wants the film taken off the Internet. A letter (PDF) dated July 23 from
LiCalsi to JibJab lawyer Ken Hertz -- who recently handed the case over
to Electronic Frontier Foundation staff attorney Fred von Lohmann -- demanded
the company "immediately remove the unauthorized movie from all associated
websites, and cease and desist from exploiting the work in any way."
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- LiCalsi wrote, "We further demand an accounting
for all income received from the exploitation of the unauthorized movie.
In the event that we do not receive written confirmation by July 30, 2004,
that JibJab will comply with the foregoing, we may conclude that all steps
short of litigation are exhausted."
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- Gregg Spiridellis said the order, much like the wild
popularity of This Land, came as a surprise. The film is still up on JibJab,
and he hasn't been advised by his attorney to remove it, he said. Von Lohmann
confirmed there were no plans to remove the cartoon at this time.
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- "My guess is the fact that people responded so strongly
is one reason -- is the reason it's so successful and is also the reason,
I guess, they're coming after us," Gregg Spiridellis said.
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- He said they didn't think they would get in any legal
trouble for using the song without permission, and they've never had problems
with any of their other short films. The brothers have been sharing animated
political shorts on JibJab for five years, he said.
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- They felt comfortable they were in fair-use territory,
he said, and thus didn't feel the need to ask Ludlow Music if they could
use the song. Fair use allows limited unauthorized use of copyright works
to complement or help illuminate things like commentary, criticism, news
reports, research and education. Fair use also considers whether the copyright
work in question is used to make a profit, what type of copyright work
is being used, how much of it is being used and if the work's author is
losing money from the unauthorized use.
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- "For us, this was a clear fair-use parody from day
one," Gregg Spiridellis said. "And even ... how we conceived
the idea was to say Woody Guthrie was this incredible, prolific songwriter
and just had these incredible, insightful things to say in his political
songs, and we thought it would be funny if Woody Guthrie was alive today
and just using the discourse of American politics in his songs."
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- As far as money is concerned, JibJab hasn't made much
from the popularity of This Land. Spiridellis said the company made about
$1,000 from donations in the past week -- an option that's come and gone
from the site before. Pitted against an estimated $20,000 in recent Web-hosting
costs, it would appear This Land has cost JibJab about $19,000.
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- But for LiCalsi, This Land isn't a parody, and Guthrie's
song must be licensed for legal use. "You can't just take someone's
copyright and use it for some other purpose," he said. "A true
parody is a work that uses a portion of a copyrighted work in order to
criticize or comment on that work. It's the same principle under which
you can quote a book, if you're writing a review of a book, without getting
a license. Something is not a parody when there is no function of critique
or comment on the original work. I think it's clear here that that is the
case in the JibJab version of This Land."
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- The film bears no relationship to Guthrie's song other
than stealing music and some of the words, he said. Even if it were a parody,
the law says you can only take as much of the original as is necessary
to make your point, he said.
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- LiCalsi said his client wants to resolve the dispute
without filing a lawsuit against JibJab, but if it came down to a courtroom
appearance, he would argue the Spiridellises used, without permission,
too much of the music and lyrics of the original song in their short.
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- Gregg Spiridellis said he has no idea what will happen
legally. "It's up to the publisher. If they choose to make our (lives)
miserable, then I guess that's a legal right they have at their disposal.
Hopefully, you know, if that happens we'll tell everyone about it,"
he said.
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- And what would Guthrie, who died in 1967, think of JibJab's
use of his song? If a message reportedly written at the bottom of one of
his songbook pages in the 1930s is any indication, it's possible he wouldn't
mind.
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- According to various Internet sources, including the
website of the Museum of Musical Instruments in Santa Cruz, California,
Guthrie allegedly wrote, "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."
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- © Copyright 2004, Lycos, Inc. All Rights Reserved.
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