They certainly have. During the 2004 election season, a year after I spoke to Michael Smith, a small-time team of cartoonists posted a Guthrie-invoking political parody on their Web site. Not surprisingly, TRO threatened to sue. The animated short portrayed G.W. Bush and John Kerry singing a goofy ditty to the tune of “This Land Is Your Land,” where Bush said, “You’re a liberal sissy,” Kerry replied, “You’re a right wing nut job,” and they sang together, “This land will surely vote for me.” Guthrie’s copyright managers didn’t think it was funny at all. “This puts a completely different spin on the song,” TRO’s Kathryn Ostien told CNN. “The damage to the song is huge.” Perhaps more damage is done to Guthrie’s legacy by practicing such an aggressive form of copyright zealotry.
“If someone changed a lyric in Woody’s time,” said Michael Smith, “chances are it wasn’t going to be recorded and it was just spread through campfire singing, you know, family-time singing and stuff like that. You know, now you can create your own CD at home and distribute it any way you want to, and so the dissemination is a lot broader, a lot faster, and can be a lot more detrimental to the integrity of the song.”Detrimental to the integrity of the song? I pressed him further on Guthrie’s own alterations of others’ songs and asked what Woody would think of TRO locking up his folksong catalog. “The answer to that is, you know, ‘Hey, you’re going to have to ask him, because we have a duty,’ ” Smith said. “We don’t know what Woody would have wanted — we can’t tell.”
Soon Michael Smith began to make a little more sense to me — at least economic sense. “If you allow multiple rewrites to occur, then people will think it’s in the public domain, and then you have a hard time pressing people to prove to them that it’s not in the public domain.” Then the publishers can no longer generate revenue from it. That a company can still make money off “This Land Is Your Land” is exactly the type of thing I believe Woody Guthrie would not have wanted. Even worse, that TRO prevents musicians from releasing altered, updated versions of his music probably makes Guthrie roll in his grave. But don’t trust me; listen to the man himself. When Guthrie was still alive, for instance, Bess Lomax Hawes told him that his song “Union Maid” had gone into the oral tradition, as folklorists call it.
“It was part of the cultural landscape, no longer even associated with him,” said Hawes, the daughter of the famous song collector and archivist Alan Lomax.“He answered, ‘If that were true, it would be the greatest honor of my life.’ ”[5] In a written statement attached to a published copy of his lyrics for “This Land Is Your Land,” Guthrie made clear his belief that it should be understood as communal property. “This song is Copyrighted in US,” he wrote, “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 ours, 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.” Notice that he mentioned the song’s copyright lasted twenty-eight years, though the term was later lengthened.
Also note that Guthrie said, “We wrote it” not “ I wrote it,” something that indicates Guthrie didn’t see himself as the song’s sole author. Since much of the song’s power comes from that lovely melody passed down to him, how could he? In light of Guthrie’s view, how sad it is that others continue to taint this socialist musician’s ideals by keeping his songs private property, turning them into a lucrative revenue stream rather than a shareable part of our common cultural heritage. If Woody Guthrie had to make his art under the overly restrictive policies his song-publishing company imposes on today’s musicians, it would have been very hard for him to make his music at all. In some cases it would have been impossible, for “things have changed.”
In a dramatic turn of events, Ludlow Music, the subsidiary of TRO that controls Guthrie’s most famous copyrights, backed off from its legal threats against JibJab.com’s parody. This was after the Electronic Frontier Foundation (EFF) -a nonprofit organization that defends civil liberties online — came to the Web site’s rescue, providing legal counsel. What made the aftermath of the JibJab.com flap remarkable wasn’t merely that the copyright bullying ended. More interesting was the discovery by EFF senior intellectual property attorney Fred von Lohmann that, according to his research, “This Land Is Your Land” has been in the public domain since 1973! He writes:
Fact#1 : Guthrie wrote the song in 1940. At that time, the term of copyright was twenty-eight years, renewable once for an additional twenty-eight years. Under the relevant law, the copyright term for a song begins when the song is published as sheet music. (Just performing it is not enough to trigger the clock.)
Fact #2 : A search of Copyright Office records shows that the copyright wasn’t registered until 1956, and Ludlow filed for a renewal in 1984.
Fact #3 : Thanks to tips provided by musicologists who heard about this story, we discovered that Guthrie published and sold the sheet music for “This Land Is Your Land” in a pamphlet in 1945. An original copy of this mimeograph was located for us by generous volunteers who visited the Library of Congress in Washington, D.C. This means that the copyright in the song expired in 1973, twenty-eight years after Guthrie published the sheet music. Ludlow’s attempted renewal in 1984 was eleven years tardy, which means the classic Guthrie song is in the public domain. (I’ll note that Ludlow disputes this, although I’ve not heard any credible explanation from them.)
So Guthrie’s original joins “The Star-Spangled Banner,” “Amazing Grace,” and Beethoven’s Symphonies in the public domain. Come to think of it, now that “This Land Is Your Land” is in the public domain, can we make it our national anthem? That would be the most fitting ending of all.
Because art isn’t made from thin air, the existence of a large and thriving public domain enriches the quality and diversity of creative expression. It’s an important resource used by creative people to make new works, such as the musicals Les Misérables (based on the nineteenth-century novel by Victor Hugo) and West Side Story (based on Shakespeare’s Romeo and Juliet).[6] The public domain also promotes artistic freedom of expression®, because it eliminates the rigid control some copyright owners exercise over the context in which their works appear. For instance, Gilbert and Sullivan’s comic operas were tightly controlled by the D’Oyly Carte Opera, which required that all performances be staged exactly as the originals were. Not a note could change. But when the copyrights were released into the public domain the musicals were freed from the shackles of artistic mummification.[7]
Disney — which strongly lobbied for the Bono Act — made billions of dollars recycling “Snow White,” “Pinocchio,” “Beauty and the Beast,” and many other old stories and fables. Like Guthrie, it would have been much harder for Walt Disney to legally make his fortune if he had to work under the intellectual-property laws his corporate heirs advocate. In his dissenting opinion in the challenge to the Bono Act, which the Supreme Court upheld, Justice Stephen Breyer argued that this law threatens the endangered ecosystem that is our cultural commons. “I cannot find,” wrote Breyer, “any constitutionally legitimate, copyrighted-related way in which the statute will benefit the public. Indeed, in respect to existing works, the serious public harm and the virtually nonexistent public benefit could not be more clear.”