Yesterday, my astrologer friend, Elisabeth Grace, asked me to make a prediction of my own. She forwarded this article in The Guardian and inquired as to whether I thought the band Skinny Puppy has a case. As the article points out, the band’s music apparently was used as part of the “enhanced interrogation techniques” on “detainees” at the Guantanamo Bay facility operated by the US government on the grounds of the naval base there. The band is now demanding payment from the US Department of Defense in the amount of $666,000 for the unauthorized use of their music in this manner. Although I’m sympathetic to Skinny Puppy’s plight, I’m skeptical as to whether they have a cognizable claim.

Let’s assume that one of the guards got his hands on a Skinny Puppy CD and that he and his buddies thought it would be “persuasive” to blast the music at high volume on the prison grounds. Could Skinny Puppy have objected to this usage and can they now demand payment from the US government? Although Gitmo is on the island of Cuba, it is United States territory, so presumably, US law applies. The US Copyright Act grants copyright owners the exclusive right of public performance in Section 106.

However, this right does not apply to the public performance of a sound recording, such as a CD, LP or download when played over loudspeakers or broadcast by radio or TV. There is only a public performing right in a sound recording when it’s performed by means of a digital transmission, such as by streaming over the Internet. The US is one of less than a handful of countries (including North Korea and Iran) that does not have a broader public performing right in sound recordings.  So, neither the band nor its label can sue for the unauthorized blasting of the Skinny Puppy tracks over loudspeakers at Gitmo.

And that’s even assuming that such a broadcast constitutes a “public” performance under the US Copyright Act. Although there is no public performance right in a sound recording, there has long been such a right in the underlying musical compositions. It is this right that performing rights organizations (PROs) like ASCAP, BMI and SESAC have been licensing for decades. The songwriters and music publishers of the songs embodied in recordings that are played over loudspeakers at stadiums and nightclubs and other public venues are paid for this use by the PROs that license these facilities.

Section 101 of the Copyright Act defines a public performance as  a performance that is “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” I’ve not researched this issue, but performance at a federal detention center or any other prison probably isn’t a “public” performance. For example, ASCAP and BMI license local – but not federal – governments and prisons don’t seem to be covered by these licenses.

To further illustrate the distinction between a public performance, over which the songwriters of the Skinny Puppy works could have a claim and a private one where they would not, consider this example: If I were to blast a Skinny Puppy CD in my apartment, that’s a private performance and neither the band, the label, the songwriters, SoundExchange, nor ASCAP or BMI could come after me. However, my neighbors could call the cops for creating a nuisance – but that’s not a copyright claim or one that the band would have standing to bring.

And while there isn’t a blanket government use exemption, the feds would likely argue, somewhat ironically no doubt, that even assuming there is a “public” performance of the Skinny Puppy songs at the prison, the use by the government was “fair use” as it was in the course of lawful governmental activity (at least according to Justice Department memos) and not for commercial gain. If the government can claim “fair use”, it’s as if they had permission. For example, if a local fast food joint had ASCAP and BMI licenses and used certain music to deter teen loitering, the songwriters would have no say as to this particular use or the volume of the playing,  although the neighbors — but not the songwriters or the recording artist —  might object as a nuisance.

Any other claims the band might have may well be pre-empted under the Copyright Act. But as quoted in The Guardian article, the band’s keyboardist acknowledges that their point isn’t financial gain. It’s just one more more in a litany of public  moral outrages associated with Guantanamo. Unfortunately for Skinny Puppy, they can’t sue based on any such moral rights.