Dear Doc:

Is the song “This Land is Your Land” in the Public Domain?

A. Singer

Dear A:

Back in 2004 the website JibJab posted a video in which John Kerry and George W. Bush had a rap-battle to the tune of Woody Guthrie’s “This Land is Your Land.” Kerry called Bush a “right wing nut job” and Bush said that Kerry was a “liberal wiener” who “has more waffles than a house of pancakes.” JibJab used Guthrie’s song to comment on the gutter-level political discourse taking place. 

Ludlow Music, the music publisher that claimed to own the copyright in Guthrie’s song, sent a cease and desist letter to JibJab, accusing them of copyright infringement. JibJab, with the help of the Electronic Frontier Foundation (EFF), filed a lawsuit in seeking a declaration that their use was a fair use as political parody.

During the case, EFF discovered that “This Land” had fallen into the public domain as early as 1973. If EFF could convince the judge that it was right, Ludlow loses the case along with its right to profit from the song.

Now, determining whether something is in the public domain is extremely complicated, requiring study of old copyright laws and treaties, finding out about how a work was first published. (Stuff the Doc gets off on, but that bores normal humans silly, except when they are self-quarantined for a few weeks.)

Under the Copyright Act of 1909 (the copyright law in effect when “This Land” was written), copyright lasted 28 years, and could be renewed for another 28 years (now, copyright lasts pretty much forever – at least 75 years, and often much longer!) For “This Land” the copyright began when the song was first published as sheet music, not when it was performed. EFF discovered evidence that Guthrie had published and sold the sheet music for “This Land” in a songbook in 1945.

In 1956, Ludlow registered “This Land” as an unpublished work with the Copyright Office. Ludlow filed for renewal in 1984, 28 years after 1956. The 1956 application, however, makes no mention of the 1945 publication. The cover page from the song book listed “This Land” as one of the included songs, and had a copyright notice (©1945).

This Land

EFF calculated that the copyright should have been renewed in 1973. This meant that Ludlow’s renewal was eleven years late. The song entered the public domain in 1973.

Ludlow took the position that the 1945 songbook was not a publication. Their attorney has said that Ludlow has “never seen any indication that copies of this thing were sold by Woody to the public” and believes that, “at the most, [Guthrie] gave one or two to Alan Lomax, who was his record producer [and] gave one maybe to a manager.” Before a judge could determine who was right, however, the publisher settled with JibJab out of court. Ludlow got to keep its copyright, and agreed not to bother JibJab.

Then, in 2016, a band called Satorii sued Ludlow for themselves and other musicians who had, “entered into a license with Ludlow, or paid Ludlow, directly or indirectly, a royalty or licensing fee for ‘This Land’ at any time since 2010.” The suit asked the judge to find that “This Land” had entered the public domain, and demanded a refund of all amounts paid to Ludlow since 2010. (The same lawyers also were also involved in lawsuits challenging the copyright status of “Happy Birthday” and “We Shall Overcome”). The law suit also said that neither Guthrie nor Ludlow ever owned a valid copyright in the melody of “This Land” because it was not original but was similar to an old Baptist gospel hymn, and the version of the lyrics included in the 1945 songbook entered the public domain in 1951 when they were published, as liner notes, without a proper copyright notice. (The 1909 Copyright Act says that publication without notice resulted in the work entering the public domain.)

There have been two rather arcane decisions about this later law suit. The Doc will not bore you with the details, but neither one is a determination of whether the song is in the public domain! We may never get a real answer to that question, because Ludlow keeps settling. They have even refunded royalty payments. When that happens, you just know the publisher figures the game is up.

Have an old copyrighted work that you think is now in the public domain? Call the attorneys at LW&H. They love legal research and may be able to help you with that, or any other intellectual property law questions.

Until next month,
The “Doc”

— Lawrence A. Husick, Esq.