Sunday, 1 August 2004

Jib Jab and the nature of parody

The first shots have been fired on both sides of the Jib Jab controversy. The usual suspects have already weighed in via their blogs (see, e.g., Ernest and Andrew.) I am not ready to give a full analysis, but one early remark irks me enough to respond right now.

Commenting to the EFF's letter, which outlined a fair use argument based on parody, Chris Cohen seemed to say this argument was disingenuous. The EFF's letter stated:

While your view of Guthrie's "This Land is Your Land" as being predominantly about "the beauty of the American landscape" and "the disenfranchisement of the underclass" is interesting, most Americans think of the song as an iconic expression of the ideal of national unity. Jib Jab's parody addresses, among other things, the lack of national unity that characterizes our current political climate (ending with the optimistic hope that unity might be rediscovered). In short, "This Land" explores exactly the same themes as the Guthrie original, using the parodic device of contrast and juxtaposition to comment on the original.

Chris wrote: "Here's my beef with the parody argument though: it reeks of post hoc reasoning (after the fact) that I am inclined to think is a little over the top. What I mean is that I seriously doubt the JibJab guys were sitting around thinking this as they authored their video." Chris does not seem to understand that this is how the law works in every context, not just in copyright.

Any first year law student can recite a long list of legal conclusions are contingent upon a factual finding of what was in a person's head at a specified moment in the past. Most crimes have an intent element. Contracts are voidable if the parties were mistaken about what they agreed to. Identical actions have different legal consequences, depending on what neurons were firing. In IP, multiple damages are available if a wrongdoer acted willfully. Identical conduct, leading to identical injury, can lead to mere compensation or a jackpot windfall, if the plaintiff can "prove" — post hoc — what the defendant was thinking at a given moment in time.

Chris would have artists live inside MRI tubes on the off-chance that one of them must later prove the time and order that his neurons fired. Failing this (and a few decades' more research before we can map neuron activity to a specific articulation of intent), Chris's argument would negate the parody defense entirely.

What proof would satisfy Chris's objection? What if the Jib Jab brothers had written a letter stating their intent and mailed it to themselves before publishing their parody? Producing the unopened, postmarked envelope would solve part of this problem, but not the whole thing. (What if they lied in the letter?) Should we really require every artist to do this before writing every song? Sounds rather burdensome to me.

Posted at 4:33:15 PM | Permalink
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