JibJab, makers of the awesome election video "This Land is Your Land" (see the bottom of JibJab's homepage), are being accused by some of hypocrisy for sending a cease-and-desist letter to The Black Lantern for using snippets of "This Land" in the Lantern's equally amazing mashup, "George Bush doesn't care about black people." JibJab was once sued by Ludlow Music, which owned the rights to Woody Guthrie's song, and prevailed by claiming fair use under the First Amendment (see WFMU's "Beware of the Blog" for an excellent roundup). Gregg Spiridellis, the cofounder of JibJab, talked briefly with Gelf today on the phone (interspersed with a lot of our waiting on hold and listening to "This Land is Your Land" in the background). While Spiridellis declined to tell Gelf his rationale over the phone, he later emailed us JibJab's reasons for sending the letter to The Black Lantern. (Spiridellis also said he may be willing to answer some follow-up qestions. If he does, we'll post his responses here.) (UPDATE: We post follow-up questions from the WFMU blogger who'd been critical of JibJab; we've also emailed these questions to Spiridellis.):

When people see the Bush dance cycle from "This Land", they think of JibJab. When they see it in a video titled, "George Bush Doesn't Like Black People", they think JibJab supports that political message. We got several angry emails to that affect after the NY Times published our art alongside an article written about the Black Lantern video.

THIS LAND was a-political. Its humor was based on the absurd dialogue coming from both sides of the aisle. The Black Lantern used 'selective' pieces of our art to propagate their political point-of-view, and in doing so, projected that point-of-view onto us. The line between partisan politics messages and propaganda is very thin. If someone used our art and superimposed a Nazi SS band around George Bush's arm would that be fair? Where do you draw the line? It's a very tricky, difficult issue.

If the circumstances were different, and an individual artist used our clips in a way that commented on how inept the Federal, State and Local governments were when it came to working together, we would have laughed, asked them for attribution and extended a gratis, non-commercial license. When someone uses our work to support a partisan point of view, we have a problem with it.

I know that some people may not take the time to reflect on this and that it may do damage to our reputation as indie creators. It's a very unfortunate situation. However, the reality is that we are an 8 person company trying to build a business in an industry dominated by media giants. If we let people use our art for partisan purposes, it will kill all the goodwill we've worked very hard to build with our audience over the years.

Hope that helps gives a little insight into what we're thinking here…

- Gregg

UPDATE: Doron from WFMU, who wrote the aforementioned blog post critical of JibJab (he declines to give his full name), emailed Gelf some incisive follow-up questions for Spiridellis. We've emailed them to Spiridellis; meanwhile, they are posted below. We will continute to update this post as the conversation progresses.

1) In the Ludlow case, you argued that "This Land" was artistic expression protected under the first amendment. Why is the Black Lantern's video NOT an artistic expression protected under the first amendment?
2) You argued that your use of "This Land" was transformative and thus constituted fair use. In your response to the Black Lantern video, you seem to take issue with the fact that he took something "a-political" and non-partisan and then turned it into something very political and very partisan. Since you clearly feel that BL's use is transformative, why would this not entitle him to fair use when you yourself previously argued that your use of "This Land" constituted fair use due to its transformative nature?
3) Luckily, you won your law suit due to the fact that Ludlow didn't end up owning the copyright to "This Land" but suppose, for the sake of argument, that it did. What if Ludlow made the following argument: "We ARE very partisan. We are die hard democrats and find your portrayal of John Kerry very offensive. People now think we love George Bush." Would this be a valid argument that would prohibit JibJab from using the music in the "This Land" video? What would your response to this argument be?
4) Suppose Ludlow music was a humorless company that had several Vietnamese employees. Suppose they found the hilarious scene in which Mr. Kerry throws a grenade and kills a small family to be objectionable. Would that affect your right to fair use? Would it allow Ludlow to enjoin JibJab from using the music?

—Carl Bialik contributed to this post.