Nobody really knows who Abnu is; an anonymous blogger over at Wordlab uses the pseudonym, which appears to be an acronym for "a brand new u" or something. Abnu writes about "naming and branding" at Wordlab, but shows a real interest in legal issues, too. We don't know if s/he's a lawyer, or not, but Abnu's written seriously about The Branding of Laws, and entertained readers with a post about the naming and branding of law firms, titled Dewey, Cheatham & Howe.
As our Guest Blogger today, Abnu brings us a post that looks at music copyright disputes from a different perspective.--Ed.
A long, long time ago, I can still remember how that music used to make me buy.
Back in the day, companies would pay big bucks for the use of much-loved songs to promote products. It was an advertising expense. Microsoft reportedly paid the Rolling Stones $10 Million for the use of "Start Me Up" to launch Windows™, and the same song was later used by Ford Motor Company.
Forget the dollars lost from consumers who freely share music files over the Internet. The latest ripoff that's burning music publishers is the so-called "fair use" of music and lyrics for commercial purposes, under the guise of parody.
Just this week, the creative animators at JibJab came under fire from the owners of the publishing rights to Woody Guthrie's song for using "This Land is Your Land" in a political parody of President George W. Bush and presidential hopeful, John Kerry. It's funny, but the music publishers aren't laughing.
"This puts a completely different spin on the song," said Kathryn Ostien, director of copyright licensing for the publisher. "The damage to the song is huge."
Is this animation simply a parody of the song, as claimed by JibJab in defense of the ensuing copyright infringement lawsuit? I think not.
Heavy thinkers from far corners of the blawgosphere have weighed in on the legal issues in this dispute. And, great legal minds with impressive credentials appear to differ.
Their analyses make the legal distinction between satire and parody, and they apply selected precedents to their personal perceptions of JibJab's "This Land" animation. Lawrence Lessig, the well-known professor of law and founder of the Center for Internet and Society at Stanford, applies a narrow construction of parody, citing "Dr. Suess" (sic Freudian). Ernest Miller, who filters tech news daily at Corante and "tend[s] to take a much broader view regarding whether something is parody," respectfully disagrees with Lessig, and concludes that "JibJab's work is a paradigmatic case of parody." Marty Schwimmer, who has a Trademark Blog, offers his two cents over at The Blawg Channel. And, Chris Rush Cohen, a 3L at the Benjamin N. Carodzo (sic) School of Law who posts about IP and cyberlaw issues on his blog, is pleased that Professor Lessig agrees with him on this issue--with a link to his humble student blawg--and seems to take that as an indication that he and "Larry" are now peers.
Professor Lessig says, "the key thing this story should do is force us to ask generally: Does a law that makes a political parody such as Jibjab illegal (even if it is not a “parody” in the copyright view of the world) make sense?" But isn't the critical question, rather, whether a derivative work can be used for commercial purposes without compensation if the advertisement can be characterized as a parody? Does that make sense?
Might this case be decided simply as a question of misappropriation for commercial benefit without compensation? Unjust enrichment. The commercial benefit might not be readily apparent to everyone, but it should not be difficult to prove in court that the piece is essentially an advertisement for JibJab. It might be a relevant fact that, when the JibJab website was overloaded with traffic, there was a banner ad on the site offering for sale digital copies of the animation for about $2.99. Currently, the site is cyberbegging for donations, with a carefully worded banner ad soliciting donations in support of "future projects" at JibJab. Regardless of the amount of direct revenue received from the sale of the animation, the commercial benefits of the "This Land" advertisement for JibJab seem obvious.
These issues are even more obvious with the so-called "parody" of The Doors' song "Light My Fire" that has been adapted recently by Linspire to announce their name change from Lindows. The inspired folks at Linspire put together a very flashy advertisement called "Run Linspire." Will the music publishers agree that this is a "parody" of "Light My Fire" by Jim Morrison, as stated in the "credits" at the end of this advertisement? I really don't think so!
Coincidentally, the "Run Linspire" animation was taken down from the Linspire website where it was originally hosted. (But there's another copy of the animation here if you missed it.) Perhaps, not everyone thought "Come on baby, run Linspire..." was all that funny. Even the CEO of Linspire, Michael Robertson, admitted, "It's a bit corny, but this parody will likely make you smile and remember our new name." Maybe Linspire got a cease and desist letter from the music publisher. Or, perhaps their new friends at Microsoft, who are cutting Linspire a settlement check for $20 Million, were not at all amused.
Practical business issues aside, do you think Linspire's use of the music for this advertisement, without permission and compensation, is legal? Is JibJab's case different, and if so, is it colored by freedom of speech with regard to its political satire?