The JibJab video would likely be considered satire, because the video does not directly target the original song. The clear target here is Bush and Kerry or politics/society in general. Also, if the video is a commercial use of the song, that will hurt JibJab's case. Commercial use is loosely defined, that the video brings people to a site where there are things offered for sale would be enough.
Since you have to watch a commercial before you can see the movie at JibJab, it sounds "commercial" to me.
Ernest Miller, however, disagrees:
- JibJab's wonderful parody undermines virtually every element of the original meaning of Guthrie's song. Where Guthrie's song is provocative understatement, JibJab's is merely provocative. Where Guthrie's song is one of unity, JibJab's version both mocks and ultimately supports that ideal. In a year in which the red/blue divide is frequently debated, Guthrie's call for unity would seem to be ripe for this sort of parody. Guthrie was a supporter of communism, but his America has become consumerist (which JibJab notes perfectly). Guthrie sang songs to raise political consciousness, JibJab mocks political consciousness.
For most, Guthrie's song has been co-opted as mindless patriotism ("God Bless America" vs. the original "God Blessed America"). JibJab's parody liberates the song for us to think about and consider again.
While at first blush it seems the fim is a satire of the election process, the media images of the candidates and political parties, Miller brings up some interesting points. I would say that at least an element of the film is a parody of the original song's utopian ideals of sharing and sharing alike, while the very essence of the political (and legal!) process of the nation is oppositional, even antagonistic. The parody positively revels in the oppositional nature of the political process, coming to the quite perceptive conclusion that we are united through our opposition. Sounds like a feasible parody defense to me.
Article comments
1 - Bill Wallo
Parody or satire, it is downright funny.
While I tend to agree with Lessig that this is a satire not covered by fair use, I am reminded of his admonishment that just because a use may be technically illegal, it isn't necessarily bad in a business sense.
Simply by using the song as a base for a satire, it could raise public awareness of the song itself (and its somewhat controversial content - see the original lyrics here). I must admit that I question whether it is worthwhile objecting to this use, as it does questionable "harm" at best to the copyright holder.
2 - Eric Olsen
thanks Bill, I think there is very little question that not only doesn't the usage do harm to the song, but it does it plenty of good from the business sense via exposure, spotlight, etc. They are idiots to oppose it.
I still think a good case can be made for a parody of the song itself being one of the usages here.
3 - Fsharp7
Didn't Woody Guthrie make a point to keep all his compositions in the public domain during his lifetime - i.e. NOT copyrighted? TRO's legal bullying is corrupting Guthrie's heritage, not JibJab. My guess is he'd be tickled pink that his music has enjoyed a resurgence for the 2004 Presidential Election.