In Woody Guthrie’s iconic folk song, “This Land,” he sang, “This land was made for you and me.” On Flag Day, the question now comes: Does the song belong to you and me?
On Tuesday, two members of the New York-based band Satorii filed a putative class action lawsuit in New York federal court seeking a judge’s nod that the composition is in the public domain and permanently enjoining defendants The Richmond Organization and Ludlow Music from asserting ownership. The plaintiffs are represented by attorneys at Wolf Haldenstein, the same firm that has been litigating public domain battles over “Happy Birthday” and “We Shall Overcome.”
According to the complaint, when Guthrie wrote the song in the 1940s, he took the melody of a Baptist gospel hymn called the “Fire Song” and wrote lyrics that were then published in a songbook not registered with the Copyright Office. Nevertheless, the 1945 book contained a copyright notice. The lawsuit asserts that if the 28-year copyright term began then, it was never renewed. The lawsuit also states that the lyrics themselves were published without a copyright notice, which under the law at the time, may mean the copyright was divested.
Ludlow applied for a registrations in 1956 and 1958, identified Guthrie as the author, but according to the complaint “failed to disclose the fact that the Song had been previously published.”
The plaintiffs may thus have a few different routes towards establishing that “This Land” doesn’t enjoy copyright status, but before the litigation even gets to this level, the fight could be sidetracked by another element.
Every attempt to free a work of authorship from copyright control is a bit different. Whereas the “Happy Birthday” dispute turned on whether the publisher really acquired rights to the lyrics and the “We Shall Overcome” lawsuit is primed to explore whether the version registered with the Copyright Office represents a “distinguishable variation” from possibly public domain versions (more on that in a future post), this newest case might have a thing or two to say about other quirks of copyright law — cover songs and derivatives.
Satorii has created a cover version of “This Land” that is available on iTunes, but also has created a different version that uses Guthrie’s lyrics but with a different melody.
The compulsory license rules allow musicians to record new versions of copyrighted compositions without “chang[ing] the basic melody or fundamental character of the work,” meaning that Satorii’s latter version could potentially bring a lawsuit from the copyright owner of “This Land” if it was distributed. That is, if it is deemed to be an impermissible derivative instead of a cover song.
Then again, courts are only supposed to wade into matters that are “justiciable,” meaning where there’s a ripe controversy at hand. In the “Happy Birthday” and “We Shall Overcome” cases, the plaintiffs were denied licenses to feature the songs in films, but in this lawsuit, the controversy is more theoretical. Satorii say they “cannot risk releasing” their version of “This Land” that arguably requires permission and also assert they “cannot produce and release a music video of the Song without purchasing a synchronization license,” but on the other hand, they fail to allege that they were denied a license nor cite any explicit threat from Ludlow. The closest they come to suggesting Ludlow’s potential to interfere is a 12-year-old dispute upon JibJab’s creation of a parody of the 2004 election between John Kerry and George W. Bush set to “This Land” music. There, the publisher asserted rights and the case was brought to court before settling.
As such, there may be a real question whether a judge takes jurisdiction to determine whether “This Land” is in the public domain or whether the judge dodges a conclusion similar to the way that a Pennsylvania judge earlier this year refused to tackle a public domain fight over the Buck Rogers character. (Satorii paid $45.50 for a mechanical license for the rights to produce and distribute the cover version. The plaintiffs also are arguing the payment was an “involuntary result of Defendants’ assertion of a copyright.”)
These issues could be addressed soon enough. In the meantime, here’s the complaint seeking to free “This Land” as well as collect a return of licensing fees and award restitution.