Posted by Matt on February 06, 2014 Tagged with: music, copyright, musicvideo
From Clancco comes a story about legendary Canadian industrial band Skinny Puppy. The band got wind that the US government had used their music to annoy/break down/torture (choose your favorite adjective) at Guantanamo Bay. They did not approve of their music being used in this fashion, but they didn't think they could really stop the US from doing it. So they did the next best thing: they invoiced the "US government" for the use of their music, to the tune of $666,000. You can check out the invoice here.
It would be easy to treat this as a throwaway story about a band that found a clever way to make a point about how they feel about their music being used in this context. I'm sure they have no expectation that that invoice will ever get paid. But let's over-analyze it a bit just for kicks.
First, let's consider the law that Skinny Puppy is relying on to justify their invoice. After all, just because an invoice gets sent doesn't mean the person who receives it has any obligation to pay it. Most invoices you receive are because you entered into a contract. You agreed to pay your ISP $50 a month for Internet service. They delivered that service, so now you owe them $50. You're expected to pay that invoice; if you don't, that's a breach of contract and they can drag you into court. The contract creates an obligation to pay the invoice when it arrives. But the US government never entered into a contract with Skinny Puppy. So where might the US government's obligation to pay the invoice come from?
Well, it probably comes from copyright law. The US government has used Skinny Puppy's copyrighted work without permission. In certain circumstances, that might be an infringement of Skinny Puppy's copyright. This infringement creates the obligation to pay the invoice: if they don't pay, Skinny Puppy could drag the government into court for copyright infringement (although even if they happens, they might not get the full $660,000 that they're claiming).
Of course, this obligation only arises if the US government has actually infringed their copyright. And that's not entirely clear. Under US copyright law (which I'm assuming applies here), not every unauthorized use of music is an infringement. Putting on some background music at your intimate dinner party with a few friends is not copyright infringement, for instance.
The most likely case for infringement is that this is a public performance of the music. It is an infringement of the copyright in a musical work to perform it publicly without permission. There is some argument over what constitutes a public performance, and the devil is always in the details. And unfortunately, all of the linked articles are short on details as to how the music was used. If it's being blasted in the yard to break down detainees en masse, then that's probably a public performance. But if the music was used to break down detainees on an individual basis, in a small room containing only a single detainee, then that's probably not a public performance. If it wasn't, then there's no infringement and the US government has no obligation to pay the invoice.
There may be other ways to make the case that the US government infringed Skinny Puppy's copyright. But even if they did, there still might not be any obligation to pay. The Clancco post raises the question as to whether the US government's use of the music might be fair use. Fair use is a doctrine in US copyright law which excuses certain infringements. Fair use attempts to alleviate some of the strictness of copyright law by recognizing that in certain unspecified situations, it might be acceptable to use someone else's copyrighted work without permission. From Wikipedia:
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.
Whether or not a particular use a copyrighted act is a fair use is always a topic of much debate on the Internet. It's notoriously hard to predict exactly what a given judge will decide given a specific set of facts. Lawrence Lessig has been quoted as saying: “Fair use means years of litigation... It’s nothing more than the right to hire a lawyer".
I'm not going to delve into whether or not the US government use of Skinny Puppy's might be fair use. We don't have nearly enough details to really do that analysis justice. Besides, even if it wasn't considered fair use and the US government really did infringe Skinny Puppy's copyright, does anyone think that invoice would actually get paid? The US government still hasn't paid Antigua the $21 million a year that the World Trade Organization has held that it owes them for the damage done to the Antiguan economy when the US cracked down on online gambling. What hope does Skinny Puppy have?
Canada has not adopted the fair use doctrine into it's copyright laws. Instead, we have something called "fair dealing". Fair dealing is similar, but with one important caveat: only activities which fall into certain categories can qualify as fair dealing. Those categories are: research, private study, education, parody, satire, criticism, review and news reporting. Michael Geist points out that given recent court decisions, those categories may be interpreted extremely broadly. So broadly, in fact, that he thinks drawing this distinction between fair dealing and fair use no longer makes sense in most cases. Despite my respect for Mr Geist, I still can't see how you'd squeeze "torturing prisoners" into any of those categories. I'd say that there's no way this use of Skinny Puppy's music would be considered fair dealing in Canada.
I was never a huge Skinny Puppy fan, but I did enjoy ohGr, a side project of one of the band's members. So here's some ohGr.