"This Land" Update

One more followup to my column on the JibJab/"This Land Is Your Land" copyright dispute. You can now view the publisher's cease and desist letter on the Electronic Frontier Foundation's website. It makes for interesting reading, for two reasons:

1. it shows that the publisher is aware of the song's original message, though you wouldn't guess that from its spokeswoman's comments to the press; and

2. it complains that the JibJab film "copied the entire melody, harmony, rhythm and structure" of Woody Guthrie's song. As I mentioned on Hit & Run yesterday, "This Land" itself "copied the entire melody, harmony, rhythm and structure" of an earlier song by the Carter Family. I also speculated that the music might be even older than that, and sure enough, I read now on Ernest Miller's blog that it appeared previously in a Baptist hymn, "Oh My Lovin' Brother."

There's still the matter of Guthrie's words, which he did write himself. The JibJab movie actually includes only 13 of them, but, as Eugene Volokh wrote yesterday, "I suspect that the words used in this combination and this order are indeed copyrightable." Interestingly, the first draft of Guthrie's song did not use the line "This land was made for you and me"; instead he wrote "God blessed America for me," a poke at the song he was satirizing, "God Bless America." Alert the estate of Irving Berlin!