This Song Belongs To You And Me: Lawsuit Filed To Declare Woodie Guthrie's Classic In The Public Domain

from the we-don't-give-a-dern dept

Tue, Jun 28th 2016 8:27am — Mike Masnick

American folk hero Woody Guthrie famously put the following anti-copyright notices on one of his records once:

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

And yet, his most famous song, "This Land," keeps coming up in copyright disputes. Over a decade ago, we wrote about how the organizations claiming to hold the copyright on that song went after the company JibJab, which had made a clear parody of the song during the 2004 Presidential election. In that case, once the EFF got involved, the case was settled out of court. But as EFF noted back in 2004, part of the reason for the settlement was pretty clear evidence that "This Land" was absolutely in the public domain:

Fact #1: Guthrie wrote the song in 1940. At that time, the term of copyright was 28 years, renewable once for an additional 28 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, DC. For those who are not able to visit the Woody Guthrie Manuscript Collection at the American Folklife Archives, we've posted a copy of the document.

This means that the copyright in the song expired in 1973, 28 years after Guthrie published the sheet music. Ludlow's attempted renewal in 1984 was 11 years tardy, which means the classic Guthrie song is in the public domain.

Not much more had come of this until a few weeks ago when some musicians in the band Satorii decided to take the claimed copyright holders to court, asking for declaratory judgment that the song is in the public domain -- while also asking that license fees paid in the past get returned. The two defendants? The Richmond Organization and Ludlow Music. If those names sound familiar, they're the same two organizations at the receiving end of a very similar case over the song "We Shall Overcome."

The filing in this case repeats the arguments that EFF made 12 years ago almost verbatim.

Guthrie published the Song in 1945 with a proper copyright notice, which created a federal copyright in the Song. The copyright to the 1945 publication was not renewed. As a result, the copyright expired after 28 years, and the Song fell into the public domain in 1973.

Despite Guthrie’s 1945 publication of the Song, Defendant Ludlow purportedly copyrighted the Song in 1956. Based on that 1956 copyright, Defendant Ludlow has wrongfully and unlawfully insisted it owns the copyright to This Land, together with the exclusive right to control the Song’s reproduction, distribution, and public performances pursuant to federal copyright law.

For example, on July 23, 2004, Defendant Ludlow’s counsel wrote to counsel for Jib Jab Media, Inc. (“Jib Jab”), regarding Jib Jab’s use of the Song. In that letter, Defendant Ludlow’s counsel asserted that “Ludlow is the exclusive copyright owner of the classic folk song ‘This Land is Your Land’ written by the well-known folk artist Woody Guthrie.” The letter also asserted that Jib Jab’s use of the Song’s melody and “the well-known lyrics ‘This land is your land, this land is my land’ and ‘From California to the New York Island’” infringed Ludlow’s copyright.

Irrefutable documentary evidence shows that Defendants own no valid copyright related to This Land. The popular verses of the Song were first published in 1945, and the copyright in those verses ended no later than 1973 (if not earlier). Defendants never owned a valid copyright to the Song’s pre-existing melody.

The filing includes a copy of the 1945 publication of a version of the song:

The filing notes that the melody pre-existed "This Land" and was used in a variety of earlier songs, and thus he has no copyright in the melody -- even though Ludlow claimed (falsely) in its 1956 copyright registration that Guthrie wrote the music (it also failed to note that the song had been published multiple times earlier). Amusingly, of course, in noting the lyrics to "This Land," it's noted that part of one version of the song mocks the idea of private property:

Was a high wall there that tried to stop me
A sign was painted said: Private Property,
But on the back side it didn’t say nothing –
This land was made for you and me.

The case makes a pretty strong argument for the song being in the public domain. It seems like there's now this trend of forecefully declaring works in the public domain after years of having someone claim ownership over them. While it's good to finally see some of this stuff officially enter the public domain, it's rather ridiculous that we're all left fighting for a public domain.

This-Land-Complaint (PDF)This-Land-Complaint (Text)

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Filed Under: copyright, public domain, satorii, this land, woodie guthrie
Companies: ludlow music, the richmond organization, tro

40 Comments

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That One Guy (profile), 28 Jun 2016 @ 7:27am

"Look over there, a distraction!"
Not much more had come of this until a few weeks ago when some musicians in the band Satorii decided to take the claimed copyright holders to court, asking for declaratory judgment that the song is in the public domain -- while also asking that license fees paid in the past get returned. The two defendants? The Richmond Organization and Ludlow Music.

... both of whom are I imagine are doing their best to think of a way to get the case dropped without the declaratory judgement being made, which even if the request for refunds of past 'licensing fees' isn't upheld would mean that they won't be able to collect future fees.

As such I foresee some very lucrative 'settlement' offers being made, and I can only hope that the ones who filed for declaratory judgement stick to their guns and see the case through rather than taking the easy/profitable way out.
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Call me Al, 28 Jun 2016 @ 9:03am

Reverse shakedown
I wonder if we've moving into a time of reverse shakedowns.

Previously the "copyright holder" would take someone to court for infringement hoping for a quick settlement.

Perhaps now we'll have multiple groups taking "copyright holders" to court to get a public domain declaration but also really hoping for a quick settlement.
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Anonymous Coward, 28 Jun 2016 @ 9:06am

Food Fight !!!
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John Snape (profile), 28 Jun 2016 @ 9:13am

Copyfraud everywhere
It's not just music: Getty is "licensing" public domain images at pretty high prices:

http://www.gettyimages.com/license/534290412

(That image was made in 1865 by Gustave Doré, by the way)
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Anonymous Anonymous Coward (profile), 28 Jun 2016 @ 9:26am

Re: Copyfraud everywhere
But...but...but...they scanned it and all that creative effort in getting a clean scan deserves a new copyright./s
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Anonymous Coward, 28 Jun 2016 @ 9:42am

Re: Copyfraud everywhere
There are, and always have been people who refused to acknowledge public ownership, which is how the Europeans took over the Americas and other places where the land was in the public domain.
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Anonymous Coward, 28 Jun 2016 @ 9:47am

Happy Birthday to you, Happy Birthday to you. Happy Birthday dear Ludlow. Happy Birthday to you.
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David, 28 Jun 2016 @ 9:50am

Fighting for a public domain?
While it's good to finally see some of this stuff officially enter the public domain, it's rather ridiculous that we're all left fighting for a public domain.

Sorry, but I do get reminded of Matthew 15:27: "And she said, Truth, Lord: yet the dogs eat of the crumbs which fall from their masters' table."

Nothing has entered the Public Domain for so many decades. The only fights we see are about stuff that already had entered the Public Domain long, long ago but was still misappropriated beyond even the reach of the ridiculous copyright law extensions.

This is not fighting for a public domain. This is pissing on the bulldozers illegally levelling trees in a tiny remaining alibi reservation.
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Anonymous Coward, 28 Jun 2016 @ 9:55am

Re: Re: Copyfraud everywhere
Also known as protectionism. This is where the rich and powerful take over what used to be public and free. They claim it is for our own good, but never explain how exactly we benefit.
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David, 28 Jun 2016 @ 9:57am

Corporate chorus version:
"This land is my land, this land is my land, from the Redwood Forest to the New York Island, the Canadian Mountain to the Gulf Stream waters, this land is made for me and me."
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Anonymous Coward, 28 Jun 2016 @ 10:00am

Re: Reverse shakedown
Eventually, it will become more profitable to release songs to the public domain than to keep giving single payouts.

I see no downside here :)
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jupiterkansas (profile), 28 Jun 2016 @ 10:01am

Re: Copyfraud everywhere
It's public domain, so their perfectly free to sell it for whatever they can get. They simply can't prevent others from freely using it.

Of course, calling it a license is dubious.
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jupiterkansas (profile), 28 Jun 2016 @ 10:02am

Re: Fighting for a public domain?
The public lost the public domain fight 40 years ago.
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Anonymous Coward, 28 Jun 2016 @ 10:04am

Re:
This land is your land,
We shall overcome,
This land is my land
We shall overcome,
From the Arctic Circle
We shall overcome, some day.
To Antarctic Islands

Oh, deep in my heart,
From Greenwich England,
I do believe
'Round to Greenwitch England:
We shall overcome, some day.
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Annonimus, 28 Jun 2016 @ 10:21am

Mike go sit in a corner for 5 minutes for this
"It seems like there's now this trend of forecefully declaring works in the public domain after years of having someone claim ownership over them. While it's good to finally see some of this stuff officially enter the public domain, it's rather ridiculous that we're all left fighting for a public domain."

The public domain like any public right has to be fought for continuously in order to be maintained because if it is not fought for continuously than someone will come along and try to limit that public right because they stand to gain more from limiting it.

Also it's forcefully not forecefully. Bad Mike. :)=
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Anonymous Coward, 28 Jun 2016 @ 10:56am

Re: Corporate chorus version:
No, the Corporate chorus version goes like this:

"This land is my land, this land is my land, from your innermost thoughts to the the most generic expressions, from Canadian TV to the Gulf Stream oil, this land is made for me and me."
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Anonymous Coward, 28 Jun 2016 @ 11:09am

It's sad to think that if I had a child today that they would die of old age, and probably their kids as well. before any culture made even before they were born wouldn't be in the public domain with the way copyright is today. That makes absolutely zero sense. And it makes absolutely no sense that someone that died in '67 still needs incentive to make new music.
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David, 28 Jun 2016 @ 12:08pm

Re: Re: Copyfraud everywhere
Give a substantially improved copy master 10 years from time of publication. "Substantially improved" means that substantial traits of further copies must be attributable to the particular mastering and not just be some watermark.

Drop the "creativity" requirement from this remastering copyright, but actually start seriously heeding it on everything else.
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David, 28 Jun 2016 @ 12:20pm

Re:
And it makes absolutely no sense that someone that died in '67 still needs incentive to make new music.

Arguably she'll need a whole lots of incentive to make new music.

Joking aside, the only way someone will create music after being dead is by impetus. The idea of a post-mortem copyright is to give the author, via his interest in his heirs, an inclination to continue working until his death and to give the licensing companies an interest in offering appropriate terms and conditions.

This, however, is fully served by offering a fixed duration of copyright after publication.

As to "creating new works": a dead author does this by cultural legacy. Effectively eternal copyrights drain the impact of the author's contribution until it stops dead, like the impetus of a bullet gets drained in syrup.
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Anonymous Coward, 28 Jun 2016 @ 12:22pm

404'd on EFF site
In the 6th paragraph above, starting with "Fact #3" you provide a link to a copy of a document. That link returns a 404 from the EFF's site.
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Anonymous Anonymous Coward (profile), 28 Jun 2016 @ 1:00pm

Re: Re: Re: Copyfraud everywhere
Just what do you find new in making an exact copy? If there were some significant 'interpretation' say, then it becomes a derivative work, but any self proclaimed copyright holder would argue that regardless of how interpretive something might be it is not derivative enough and requires payment.
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David, 28 Jun 2016 @ 2:14pm

Re: Re: Re: Re: Copyfraud everywhere
I find it hard to entertain the thesis that you actually read what you are replying to.
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David, 28 Jun 2016 @ 2:16pm

Re: Re: Re: Copyfraud everywhere
Trickle-down economy. In other words, they are pissing on you and tell you it's raining.
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Anonymous Anonymous Coward (profile), 28 Jun 2016 @ 2:26pm

Re: Re: Re: Re: Re: Copyfraud everywhere
Really.

Did you bother to look at the image referenced in the comment I first replied to? It is a pen and ink drawing, from 1865, what was new about Getty Images scan of it? Or were you referring to something in your imagination?

The whole idea of creating a new copyright by remastering something is ridiculous, more ridiculous that copyright itself has gotten.
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Anonymous Coward, 28 Jun 2016 @ 2:36pm

Re: Re:
There should be no copyright after a persons death, period, it should automatically go into the public domain.

Guthrie died in 1967 so nothing he ever did should still be covered under copyright, it should all be in the public domain.
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Barbara Waxer (profile), 28 Jun 2016 @ 4:38pm

Re: Copyfraud everywhere
Not to condone, but I think what Getty is doing is charging to recoup their hi-res scan costs. The New York Public Library initially also charged for digitization, but recently released their massive public domain libraries.
http://www.nypl.org/blog/2016/01/05/share-public-domain-collections
Won't hold my breath waiting for Getty to do the same.
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Anonymous Anonymous Coward (profile), 28 Jun 2016 @ 5:23pm

Re: Re: Copyfraud everywhere
Getty is recouping their hi-res scanning by "licensing" a digital copy to you with ALL Kinds of restrictions including no resale. So, if you 'buy' a scan and then pay to have a hi-quality print made, and framed, you cannot sell it. Your estate cannot sell it.

So how much does it actually cost to make a hi-res scan? I have a multifunction printer that will make a fairly hi-res scan, one issue being that the platform isn't very large. So Getty has to buy a large bed hi-res scanner, maybe higher-res than my printer, they are still not that expensive. How many copies till that is paid off? Next they have some labor, place the item to be imaged on the bed, make a few setting in the software, push the go button, take a coffee break. Hmmmm.

I also noticed that they don't mention the price anywhere on that page. I wonder how ridiculous that is. Well, so ridiculous that it needs to be hidden.
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Neologist (profile), 28 Jun 2016 @ 5:32pm

Re: Re: Re: Copyfraud everywhere
And that's why we love Creative Commons
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Whatever, 28 Jun 2016 @ 6:01pm

Nooooo! This is an outrage!
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David, 28 Jun 2016 @ 10:15pm

Re: Re: Re:
So an artist has half a year to live and is in debt and does not know how his wife will survive. What incentive does he have to finish a work when it will only see publication/distribution after he is gone and his widow will not see a cent?

What about stuff like "The Silmarillion" that needed considerable post-mortem effort to get into publishing shape? No copyright whatsoever, so a negative incentive for the heir to go to all the work of preparing a publication?

No, I am really fine with a fixed sane time of copyright after publication independent from the author's life span. It means everybody knows what he is negotiating about.

And of course this particularly isn't the case for posthumous one-sided extension crap.
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PaulT (profile), 28 Jun 2016 @ 11:47pm

Re: Re: Re: Re:
"What incentive does he have to finish a work when it will only see publication/distribution after he is gone and his widow will not see a cent?"

I generally tend to disagree with the idea that work should enter the public domain instantly (I tend to favour limited 15-20 year copyrights with option to renew until death, after which it expires on the next renewal date).

But: this kind of argument gets no sympathy from me. What you're saying here is that not only is profit the sole motivator for the "art" being created, but the artist has been terrible at managing the income from his previous works. So, someone who needs to create one last product to sell so that his family doesn't starve from his squandering of his lifetime income. Why that kind of person should get higher protections than the guy who's dying and can't work his factory job is beyond me.

"What about stuff like "The Silmarillion" that needed considerable post-mortem effort to get into publishing shape?"

In that case, surely a lot of the effort was made by Tolkien's family, who are therefore listed as co-authors and retain the copyright?

"It means everybody knows what he is negotiating about."

The biggest problem with this crap is that it keeps changing post-mortem. Nobody really knows, because the deal can change at any time, it's just that most changes are to benefit corporations rather than the public.
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Anonymous Coward, 29 Jun 2016 @ 6:54am

Re: Re: Copyfraud everywhere
"where the land was in the public domain."

I doubt the indigenous people would agree with that assessment.
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David, 29 Jun 2016 @ 2:46pm

Re: Re: Re: Re: Re:
but the artist has been terrible at managing the income from his previous works.

Most artists are artists because they are not interested in being business majors. Why should they be ripped off much worse than factory workers not interested in being business majors?
So, someone who needs to create one last product to sell so that his family doesn't starve from his squandering of his lifetime income. Why that kind of person should get higher protections than the guy who's dying and can't work his factory job is beyond me.

The value someone produces with handiwork is immediate. Unless he/she is a whisky bottler in which case it is at least predictable and a certain input leads to a certain output.

The value derived from copyright to a work accrues. If you market a finished work for 2 weeks, there will not be a whole lot to gain regardless of the work's quality. So attaching a fixed marketing time to copyright actually puts it on equal footing with handiwork where the value of the work does not depend on how fast you kick the bucket after completion.
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PaulT (profile), 29 Jun 2016 @ 11:10pm

Re: Re: Re: Re: Re: Re:
"Why should they be ripped off much worse than factory workers not interested in being business majors?"

Who's talking about him being ripped off? At worst, I'm talking about him being treated the same as anyone else.

"The value someone produces with handiwork is immediate."

Not really, it very much depends on the type of work.

"If you market a finished work for 2 weeks, there will not be a whole lot to gain regardless of the work's quality"

Define "market". There's plenty of quality work that's been successful without having to bombard people with ads for months. Also, even if you market a pile of shit for a decade, you're not guaranteed a profit. The time you spend shilling your work doesn't have a direct correlation to its success.
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Wendy Cockcroft, 1 Jul 2016 @ 5:31am

Re: Re: Fighting for a public domain?
When we let the big boys get away with referring to copyright, etc., as property.
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Wendy Cockcroft, 1 Jul 2016 @ 5:47am

Re: Re: Re: Re:
So an artist has half a year to live and is in debt and does not know how his wife will survive. What incentive does he have to finish a work when it will only see publication/distribution after he is gone and his widow will not see a cent?

Straw man: he'd have had an advance. Smart people get life insurance or assurance if they are available. This kind of thing should actually be part of the publication agreement that publishers make with artists, it'd kill off that argument. The incentive is in the drive to get the work out there. Let's flip this around: you're assuming that the artist is great and that the world will be poorer without it. Okay, what if the artist really, truly believes in his magnum opus but it's crap? And not even "Ed Wood standard so-bad-it's-good" crap? The sweat of the brow argument has already been debunked over and over again. Let's not make assumptions and let's make plans for catastrophic events. Get a proper life insurance plan that covers terminal illness, etc.

What about stuff like "The Silmarillion" that needed considerable post-mortem effort to get into publishing shape? No copyright whatsoever, so a negative incentive for the heir to go to all the work of preparing a publication?

I would personally argue that Christopher Tolkien deserves a copyright interest in his editing work because a certain level of creativity is required to turn rough notes and scribbles into a bestseller. Full disclosure: I love Tolkien and am thankful to Tolkien Jr. for bringing this to the attention of the public. While I often disagree with him on his stance on copyright I will defend to the death his right to profit from the work he did on his grandfather's legendarium. I've actually done some editing myself; you have to choose words and phrases to describe the events more clearly, cut out what doesn't work and chop and change sentences and paragraphs to ensure that the story doesn't read like a shopping list or a Janet and John reader. So yeah, give Mr. Tolkien his copyright, he's earned it.

No, I am really fine with a fixed sane time of copyright after publication independent from the author's life span. It means everybody knows what he is negotiating about.

Might that be because you can't see any other way of paying the author? I personally think that publishing agreements with authors should be independent of copyright and should run to the number of editions agreed in advance. That way, should copyright be shortened to between ten and twenty eight years, the author can continue to profit if he has convinced the publisher to cut him in on the sales of, let's say twenty editions.

And of course this particularly isn't the case for posthumous one-sided extension crap.

The trouble with thinking of copyright as the only way to pay authors is that this is the root of all the pro-extension arguments. While you're not explicitly making the case you're not exactly locking the door and bricking it up.
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Wendy Cockcroft, 1 Jul 2016 @ 5:48am

Re: Re: Re: Re: Re: Re: Re:
^This.
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PaulT (profile), 1 Jul 2016 @ 7:02am

Re: Re: Re: Re: Re:
"Straw man: he'd have had an advance."

In every case? Not a chance. It's not a straw man to address reality rather than the ideal situation.

"Okay, what if the artist really, truly believes in his magnum opus but it's crap?"

Creating a work is no guarantee of income from that work, whatever its quality. What an artist thinks of his own work has no bearing on its commercial success. Some of the worst art ever made was made by people who honestly thought they were doing something great, while great art has been created by people who believed they were doing a lazy hack job of it.

"Smart people get life insurance or assurance if they are available"

In the situation presented, we're discussing someone who failed to invest his previous earnings and now depends absolutely on the new work to provide for his family's future. It's doubtful he's made the sensible arrangements.

HOWEVER, if it comes to that then he's being treated the same as anyone else would. Which is what I'm arguing for, against the people who think that the fact that his occupation states "artist" rather than "plumber" should guarantee his family income beyond death just because of his job title.

"So yeah, give Mr. Tolkien his copyright, he's earned it."

Indeed, so in the case presented the issue is moot because people doing work will still earn a copyright status even though one of the parties is no longer with us. That's a different subject to the one at hand.

"Might that be because you can't see any other way of paying the author?"

Not at all. However, I'm not in favour of cutting off all income the instant a person stops breathing. That shouldn't happen with anyone, whatever their occupation. There should be a period of adjustment and opportunity to take care of the estate for any heirs. That includes a continuation of any royalty income the deceased was receiving for a certain period.

"The trouble with thinking of copyright as the only way to pay authors is that this is the root of all the pro-extension arguments."

Yes, many of the arguments on this subject do tend to rely on very faulty assumptions.
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Anonymous Coward, 28 Jan 2018 @ 10:34am

I wonder about Ludlow Music. How many times have they falsely stolen "copyright" from dead artists with no right to it whatsoever even when the item IS under copyright?

Someone needs to go through their entire back catalog with a finetooth comb and see.
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Anonymous Coward, 28 Jan 2018 @ 10:36am

Re: Re: Reverse shakedown
The head of the RIAA and head of the MPAA will have to go back to sucking the dicks of politicians to get new laws passed.

yessiree partner thats whuts gonna happen!
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