Meera Nair

Posts Tagged ‘parody’

celebrating a parody, 49 years later

In Posts on April 5, 2016 at 8:00 pm

The inclusion in 2012, of education, in the categories qualifying for fair dealing, has received disproportionate attention, made up of as much umbrage as applause. Far more important additions made at the same time, parody and satire, have almost gone unnoticed. Their protection was long overdue.

The first case in Canada to address parody against a charge of copyright infringement was Ludlow Music Inc. v. Canint Music Corp (1967). The dispute centred on the song This Land Is Your Land, written by Woody Guthrie (1912-1967). Canadian songwriter Alec Somerville, of The Brothers In Law, crafted new lyrics to Guthrie’s tune and retitled the song as This Land Is Whose Land.

But distribution was short lived. In a case which began on 6 April 1967 and ended on 10 April 1967, Somerville’s creation was declared as infringing upon the copyright of Woody Guthrie’s work. Jackett P. of the Exchequer Court of Canada granted an injunction restraining further sales of the album.

It must be noted that royalties were offered for use of the tune of Guthrie’s creation, under the premise that there were two copyrights at issue: (1) the copyright of the tune and (2) the copyright of the lyrics. While Somerville relied on Guthrie’s tune, Somerville’s lyrics were entirely his own creation. However, that offer was rejected and Jackett P. decided that both tune and lyrics are encircled by a song’s copyright.

Ironically, the tune was hardly Guthrie’s alone. Nick Spitzer of NPR writes:

Guthrie had a keen ear for the recordings of Virginia’s Carter Family, and he was not afraid to borrow. A 1930 gospel recording, “When the World’s on Fire,” sung by the Carters, must have provided the tune for what would become “This Land Is Your Land.”

In Ramblin Man: The Life and Times of Woody Guthrie (2004), biographer Ed Cray further traces the tune to the southern gospel hymn Oh my loving brother. But this too is hardly surprising. Creative effort necessarily relies, consciously or not, on borrowed aspects of earlier works–creativity is always a collaborative undertaking. Skillful borrowing is the very essence of parody as it must capture the distinctiveness of the original creation and the creator.

An essay published in The Spectator on 20 May 1853, makes this point forcefully:

Every line ought to make us say, that is pure Tennyson or pure Browning, as the case may be; though the notion of the poem as a whole being connected with Tennyson’s or Browning’s name, should be an instant cause of laughter. … The parodist, then, to be successful, must have the most delicate sense of literary form and the fullest sympathy of comprehension for the work of those he parodies, as well as a true sense of humour and a special dexterity in the use of words and phrases.

That capacity, to invoke an original, to have a fullest sympathy of comprehension of the parodied work, as well as to couple humour with dexterity when crafting a new work, might have been written with Somerville in mind. Just as Guthrie’s work was in reaction to the  syrupy nature of Irving Berlin’s creation God Bless America, Somerville provided a more accurate and irreverent view of Canadian history. His variation on Guthrie’s song was expressly intended for release in 1967, the year of Canada’s centenary. (The album carrying the song was titled Exposé 67.)

Yet that fact likely added to the problem; the dispute was not settled on musicology alone. In 1959, Ludlow Music Inc. had licensed Guthrie’s work for adaptation and distribution in Canada, via revisions prepared and performed by The Travellers. The rights for this authorized Canadian version were held by Ludlow Music Inc. and the song was to play a prominent part in the centennial celebrations of 1967:

This song is a patriotic song and has been widely distributed in schools throughout Canada. The song will again be published in 1967 by the Centennial Commission in the songbook “Young Canada Sings — “Le Jeune Canada Chante”, 10,000 copies of the songbook will be distributed throughout Canada. Attached … is a copy of a letter from The Centennial Commission to Ludlow Music, Incorporated requesting permission to use the song “This Land is Your Land”. Ludlow Music, Inc., has consented to such use in both 1966 and 1967 (para. 11).

Ludlow Music Inc., unimpressed with Somerville’s work, sought to protect the innocence of the Canadian public:

… the use of words which are in bad taste and insulting to the Canadian public with the music of the composition “This Land is Your Land” will cause incalculable damage to the Plaintiff and destroy the meaning and acceptance of the song in the minds of the Canadian public (para. 12).

It is difficult to assess Canadian sensibilities of 49 years ago, but likely we are more resilient today. Canadians may judge for themselves, the merits of This Land Is Whose Land.


Update July 30, 2017

Alec Somerville has re-recorded This Land is Whose Land? and shares his thoughts about the events of 50 years ago. It is heartwarming and poignant; “Woody Guthrie was one of my heroes… he wrote the truth.”  Mr. Somerville provides a rare first-person account of Canada and music in the earlier 20th century, and reminds us of the necessity of borrowing to creativity.


parody in Vancouver

In Posts on June 28, 2012 at 1:32 pm

A provocative and irreverent video brings back to Vancouver, the intersection of parody and copyright.

The creation by editorial cartoonist Dan Murphy took aim at Enbridge Inc. and the proposed development of its Northern Gateway Pipeline. As reported by the CBC, Murphy indicated that Enbridge pressured Postmedia (publisher of The Province) to remove the video by threatening to withdraw advertising support. Enbridge denied exerting such pressure. The newspaper’s official response was that their concern lay with the use of copyrighted material – Murphy had used Enbridge’s own promotional video in the making of his parody.

The copyright concern is not trivial.

Parody has not been well served in Canadian courts. Within the canon of Canadian copyright law is Michelin v. CAW (1997). In that dispute, parody had no recourse to fair dealing and copyright’s persona as private property superseded the right of freedom of expression.

In 1994, the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW) attempted to unionize Michelin Canada’s three plants in Nova Scotia. The campaign materials included a reproduction of Bibendum (the Michelin Man) with the character portrayed as figure of oppression. Michelin argued that its intellectual property rights had been violated; the CAW had not asked for nor received permission to use the character. The CAW defended their action upon the rights of fair dealing and freedom of expression.

The argument of fair dealing required that the Canadian court recognize parody as a form of criticism. Such was not to be; “[the court] is not prepared to read in parody as a form of criticism and thus create a new exception.” Moreover, the court agreed with:

… the Plaintiff’s submission that the overall use of the copyright must be “fair” or treat the copyright in a good faith manner. The Collins Dictionary defines “fair” as “free from discrimination, dishonesty, etc. just; impartial”.  … even if parody were to be read in as criticism, the Defendants would have to adhere to the bundle of limitations that go with criticism, including the need to treat the copyright in a fair manner. The Defendants held the Bibendum up to ridicule.

With such reasoning parody could never achieve sanction under fair dealing. As Emir Aly Crowne-Mohammed writes, “The central feature of any parody is to use humour or ridicule to point out some particular feature of peculiarity of the original work.”

The claim of freedom of expression did not fare well either. The property rights of Michelin were read in disproportion to CAW’s right of freedom of expression; a weighting that continues to be questioned. Jane Bailey writes:

… the Charter prohibits Parliament from creating a property right so broad as to unjustifiably inhibit infringe freedom of expression. Thus the Michelin conclusion that users must justify their expression vis-à-vis the copyright owner’s intended use of the ‘property’ mistakenly places the property cart before the constitutional horse.

Following CCH Canadian, with its edict that user rights were an integral part of the system of copyright and that fair dealing should be given a large and liberal interpretation, there was hope that parody would enjoy greater protection. Yet in November 2008 Michelin was invoked to deny the defense of fair dealing to a parodied version of the Vancouver Sun. 

Bill C-11 formally recognizes parody and satire as legitimate purposes of fair dealing. As I noted in my last blog post, Canadian courts continue to show an understanding of the nuance of the intersection of copyright, communication and creativity in the digital age. Michelin could well be displaced as the precedent in Canadian parody. But this requires someone, or some organization, be willing to bell the cat and go to court on principle. Therein lies the problem.


Jane Bailey, “Deflating the Michelin Man,” in Michael Geist, ed., In the Public Interest: The Future of Canadian Copyright Law (Toronto: Irwin Law, 2005).

Canwest v. Horizon, 2008 BCSC 1609

Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), [1997] 2 F.C.306.

Emir Aly Crowne Mohammed, “Parody as fair dealing: a guide for lawyers and judges in Canada,” (2009) Journal of Intellectual Property Law & Practice 4(7).