The Volokh Conspiracy has a series of posts (see here, here, here, and here) about the controversy over the latest Internet wildfire, the JibJab satiric duel between Bush and Kerry, done to the tune of This Land is Your Land.

If you have not seen it, take a look. It really is pretty funny.

The legal problem is that parody is classified as fair use, and thus not an infringement of copyright, only if the object of the fun is the song itself, not if the song is used to parody something else. So writing a parody of This Land is Your Land would be immune. But using the song to parody the presidential candidates may indeed violate the copyright holder's rights.

A result is that one sees learned legal debate over the exact target of a parody. Is JibJab really satirizing the politicians, or is it also poking fund at This Land is Your Land? Blogger Nick Morgan thinks the latter, and, as he points out, the discussions quickly become so droll that they look like parodies of legal opinions.

It does seem like the law could use a better sense of humor. It is hard to see any damage to the holders of the copyright from this parody, and perhaps they should simply be grateful for having the original returned to the public's attention.

A similar case arose during the last political season, when Ralph Nader produced a commercial that was a riff on the MasterCard "Priceless" campaign.

My thought at the time, to which I adhere: "If a creator of intellectual property is fortunate enough to hit such a rich chord of public resonance that the result becomes iconic -- a Dr. Seuss, a Buffy, a Star Wars, perhaps a 'Priceless' -- then it should accept the bitter with the sweet, and the scope for parody, allusion, take-off, and imaginative adaptation should be broadened, not reduced. Since all creators are both borrowers and lenders, and admitting the importance of protection against direct theft, the effort to try to keep the accounts to the penny is ultimately destructive for everyone."

posted by James DeLong @ 2:48 PM | General

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