David Black: This land is certainly not your land, says US copyright law

David Black: This land is certainly not your land, says US copyright law

David Black

A terrible fate potentially awaits any Scottish folk troubadour lacking knowledge of US copyright law should he or she be tempted to record or sing in public a Scottish variant of Woody Guthrie’s great American anthem This Land is your Land, This Land is my Land, for they could find themselves facing the wrath of a US court which, for all that flag-waving about First Amendment rights to free expression, takes a very dim view of such pernickety matters as copyright breach.

But how can a song from the 1940s still be under copyright? Indeed it was Woody Guthrie himself (an admirer of Thomas Paine, who never claimed a penny in royalties for The Rights of Man) who wrote on the original copyright application document:

This song is Copyrighted in U.S. - for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

In Scotland, where the first known copyright breach concerned St Columba’s Iona exile for sneakily cribbing a manuscript in an Irish monastery, we take a more relaxed view of the monetisation of our culture, thanks in part to Thomas Babbington MacAulay MP for Edinburgh and rector of Glasgow University, who declared “Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly.” Whether he would have been happy about others pirating his ‘Horatius at the Bridge’ poem is a moot point, of course.

In America, staking a copyright claim can be a nice little earner, consider We Shall Overcome, based on an African-American gospel song possibly originating in an 18th century hymn set to music by Beethoven, and certainly a popular spiritual by 1909. It was later very slightly altered by Pete Seeger, who changed ‘will’ to ‘shall.’ In 2012 when the producers of the American Civil Rights film The Butler sought permission to use the first verse of the song they were asked for $100,000 by copyright buy-up merchants TRO/Ludlow Music. Talk about harvesting the dead!

In any event let us consider a few of the finer points of fact and law as practised in the Cradle of Liberty itself, the United States. In the 2004 case JibJab Media v Ludlow Music it was ruled under the principle of ‘fair use’ that JibJab were within their rights to issue a parody of Mr Guthrie’s song lampooning George W Bush. 

This Land’s copyright was registered in 1956, eleven years after it had first been published, and although Ludlow (part of TRO/Ludlow of We Shall Overcome infamy) had applied to renew copyright in 1984 they were more than a decade too late as the song had been in the public domain since 1973, i.e. 28 years after first publication. TRO/Ludlow counsel’s claim that JibJab’s parody constituted ‘a blatant and wilful copyright infringement’ was thrown out and has no legal standing of competence today – at least in theory.

Or has it? The 2020 case Randall Newman v Richmond Organization inc (ie TRO/Ludlow in another guise) in the Manhattan Federal Court, Judge Castel appeared, prima facie, to reach another conclusion, though the action was dismissed on the grounds that since the plaintiff had gone ahead and paid a copyright fee of his own volition prior to a court determination there was no legal dispute left to adjudicate. Somehow this was interpreted as a resounding victory for TRO/Ludlow.

Now, while US law may have some extra-territorial application in regard to, for example, the anti-corruption RICO statutes, or the Foreign Corrupt Practices Act, it does not necessarily follow that US State or Federal law has automatic application within an independent overseas jurisdiction, such as that of Scotland, in particular where the material in question is not intended for distribution in the USA. For the rest of us, however, this must be strictly regarded as a POEM. In light of that fact we might consider the following poetic effusion, and strictly for recitation only, a bit like a school reading of Horatius at the Bridge

Incidentally, this parody should, for the purposes of this assessment, be regarded as politically neutral. If J.P Morgan could acquire the original manuscript of A Man’s a Man for A’ That because he viewed it an assertion of an individual’s right to seek personal enrichment under the Manifest Destiny doctrine, rather than a comforting Socialist anthem from Ayrshire; if Lord Michael Forsyth can proudly wear a kilt; then nothing should prevent Douglas Ross from reciting the following poem in, say, a football stadium. Indeed, he should be encouraged to do so.

A Poem for Scotland

(not, under any circumstances, to be sung)

This land is your land, this land is my land
From Cairnryan to the Shetland Islands
From the Ettrick Forest to the Pentland waters
Scotland was made for you and me.

As I was walking that Highland moorland
I saw above me that endless cloudscape
I saw below me our straths and pinewoods
Scotland was made for you and me.

I roamed the hilltops and I followed my footsteps
To the golden beaches of Machrihanish
While all around me ancestral voices
said Scotland was made for you and me.

When the sun came shining, and I was strolling
And the heather blooming and the mist a-rolling
A voice was chanting, as the air was clearing,
Saying Scotland was made for you and me.

This land is your land, this land is my land
From Cairnryan to the Shetland Islands
From the Ettrick Forest to the Pentland waters
Scotland was made for you and me.

Be warned - those readers who would prefer not to share the same block as Harvey Weinstein or Ghislaine Maxwell must assiduously avoid delivering these words in song form in any public place, such as a bus, a pub (when available) or a sports stadium (also when available.) Tweaking the tiger’s tail in such a case could be a breach of US copyright law and may be founded upon in a court furth of a US jurisdiction, such as Scotland, potentially provoking an international incident, such as a war. It is thus vital that every utterance of the said words must be strictly non-musical, and should, if performed, only be done so as a straight poetic recitation, not withstanding our rights under article 10, ECHR, to receive and impart information.

In Scotland, we are well placed to assert some right to musical free expression insofar as the US First Amendment is only part of the story, for it was Andrew Hamilton, a Scottish lawyer in the thirteen Colonies, who struck the first blow for press freedom in the 1735 seditious libel case John Peter Zenger v Lord Cosby, Governor of New York. Furthermore, as any sensible historian of American constitutional law will concede, the US constitution is connected by a ‘golden thread’ to the 1676 deed of Concessions and Agreement for West Jersey, largely the work of Scots Quakers who clearly had a copy of Sir John Skene’s excellent Regiam Majestatem: The Auld Lawes and Constitutions of Scotland lying open on the table in front of them.  

It is also a matter of providential good fortune that we are uniquely advantaged if, and when, it comes to subjecting this matter to the necessary legal tests, for as luck and a fair wind would have it our senior jurist – Colin Sutherland, Lord Carloway, Lord President of the Court of Session – also happens to be lead vocalist and no mean strummer on the bass guitar in the Faculty of Advocates jazz-rock band, The Reclaimers

While there are certain legal protocols which must be complied with (I Shot the Sheriff, for example, is excluded from the repertoire) it would certainly be in order for our Lord President and his pals to organise a musical soiree in court number one to test the resolve of these venal American copyright exploiters of our songs of protest and celebrations of nationhood.

So, take it away, my Lord President!

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