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Fat Chance for Skinny Puppy’s Guantanamo Claim

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.

 

Artists and Labels Paid for Radio Airplay?

Composers know that they should sign up with a Performing Rights Organization (PRO) such as ASCAP, BMI and SESAC to make sure they receive royalties for when their works are publicly performed in live performance venues, when broadcast on radio or TV or streamed over the Internet. Most people don’t realize, however, that when a work is played over the radio in the US, the writers and publishers of the composition receive payment for the performance through the PROs but the recording artists and record labels don’t receive a dime. So, whenever a radio station played Frank Sinatra’s recording of “New York, New York”, Kander & Ebb and their publisher got paid, but Ol’ Blue Eyes and Reprise Records did not.

In most other countries, there is a public performing right in a sound recording, but not in the US. There have been attempts over the years to fix this inequity. For example, since 1995, as amended in the Digital Millennium Copyright Act of 1998 (DMCA), there has been a limited public performing right in a sound recording. But, it only applies to “digital transmissions” which basically constitutes streaming over the Internet. SoundExchange was formed to act as a licensing collective, like the PROs, for this growing revenue stream and they pay artists and labels.

Last month, however, something occurred that may be a step in the right direction. Clear Channel, which owns 850 radio stations, and Warner Music Group, one of the industry’s major labels, announced a private deal where Clear Channel will pay public performance royalties to Warner and their recording artists. Clear Channel, apparently, will get a more favorable rate with respect to online streaming, which if you have been following what has been going on with Pandora’s continuing lobbying of Congress to reduce the rates they pay, has been an ongoing battle between webcasters and publishers and labels. Warner, in return, will receive promotion from Clear Channel, which likely means increased airplay, for their artists.

Is this a good thing? Paying artists and labels for the public performance of their recordings is certainly a step in the right direction toward aligning the US with the rest of the world. But at what cost? In exchange for increased exposure on Clear Channel stations, royalty rates for streaming are being nearly cut in half. And unlike the situation with SoundExchange, artists are not directly paid, but will be paid by the label. What is perhaps of even greater concern, however, is that this is a private deal between two industry giants. It remains to be seen whether this will deal set a precedent that will eventually enable all recording artists and labels (including indie, and artist-produced recordings) to collect public performance royalties. It probably won’t happen soon. A Congressional bill that would have given labels and artists a public performing right akin to what composers and publishers have long enjoyed died in committee in 2009. But one can hope – and lobby your local Congressman.

Update: On September 30, right before the government shut down, Rep. Melvin L. Watt (D-NC), introduced H.R. 3219, the Free Market Royalty Act, which would among other things create a public performance right in sound recordings when played on AM or FM radio.

This article was originally published in September 2013 on the ScoreStreet web site.

Happy Birthday, You’re Sued!

The mere filing of a copyright case doesn’t usually make a major splash in the media but when it involves the most performed song in the world, even The New York Times takes notice.  Apparently, filmmaker, Jennifer Nelson, was making a documentary about the song, “Happy Birthday to You” and didn’t like the idea that Warner/Chappell Music insisted on her taking a $1500 license to use the song in the film as she – and probably most people – think it’s in the public domain.  So yesterday, Ms. Nelson filed a birthday suit of sorts: an action in federal court seeking a declaratory judgment that the song is, in fact, in the public domain and no permission is needed to use it.

So, in little more than the time it takes to sing the song, I’m going to use it as a way to review a few basic copyright law principles that are sometimes misunderstood. Let the questions begin!

What is the public domain? The public domain is the body of works, music, novels, plays, texts, etc., that is no longer (or never was) protected by copyright and is therefore free for anyone to use or adapt.

When is a song in the public domain? As they say in Facebook status land, “it’s complicated.”  For songs written since 1978, a U.S. copyright lasts for the life of the author (or last surviving author if there’s more than one) plus seventy years. If there’s no author, such as a work-for-hire, the term is 95 years. For older works, the U.S. used to have a system of an initial term and then the copyright had to be renewed for, you guessed it, the “renewal term.” For these older copyrights, the initial term was 28 years and the renewal term, through various extensions, was increased to 67 years, for a total of 95 years.  There’s more to it than this, but basically, if a work was written prior to 1923, it’s most likely in the public domain here. Maybe you’re thinking that’s an awfully long time when the Constitution says that copyrights are supposed to be “for limited times.” Larry Lessig thought so when he challenged the 1998 Sonny Bono Copyright Term Extension Act but the U.S. Supreme Court strongly disagreed.

Do I need to get a license to sing “Happy Birthday to You” to my kid at my backyard barbecue? Even assuming the song is still under copyright – and as we’ll soon see that’s a big assumption – the answer is still “no.” U.S. Copyright law gives copyright owners a certain bundle of rights. Among them is the exclusive right to authorize “public performances.” A backyard barbecue, a birthday party in your basement and most other gatherings among “a normal circle of a family and its social acquaintances” is a private performance for which no permission is needed.

What if I sing the song at a gig or at a party of 500 of my closest friends and acquaintances? You’re probably safe to sing the song – or any other copyrighted song. Most public venues where music is performed (concert and catering halls, clubs and stadiums) or broadcast (TV and radio stations) have licenses from “performing rights organizations” such as ASCAP, BMI and SESAC. These companies issue “blanket” licenses to venues and broadcasters (and web sites, too) which allow the licensee to perform all the works in their respective repertories as much as they want.

Why would a filmmaker need a license? The permission that Warner/Chappell sought from Ms. Nelson for her film is known as a “synchronization” or “synch” license because the user is synchronizing music to picture. Whenever a pre-existing copyrighted song is used in any audio-visual work, such as a film, TV show, TV ad or videogame, a synchronization license is required from the copyright owner, usually a music publisher. If you’re using pre-recorded music, then you need permission from both the music publisher of the song and the copyright owner of the recording, typically a record label.

What if I post a video of my kid dancing to a Justin Bieber song? Putting aside issues of taste, technically, you’d need synch licenses from the music publisher(s) of the song and from The Bieb’s label although the actual performance of the video may be covered if the site has licenses from the performing rights organizations. As a practical matter, unless your home video is generating millions of views or you’re selling truckloads of DVDs it’s unlikely that anyone will come after you for a technical violation.

So, is “Happy Birthday to You” in the public domain? That’s for the court to decide, but if the facts are as alleged in the complaint and as cited in the  news reports and elsewhere, it seems that the song would be “PD” as we music types say.  The melody is said to come from a song called “Good Morning to All” written in 1893 and, the combination of music and lyrics is said to have appeared in print in 1912, possibly earlier. By my reckoning, if these are the facts, both 1912 and 1893 are prior to 1923. At least one legal scholar, Richard Brauneis, has written a 68-page article (with 320 footnotes!) in which he concludes that the song is in the public domain.

How can Warner / Chappell claim the song is still under copyright? Again, the facts will play out in the lawsuit, but it seems that W/C has a 1935 copyright registration, crediting different writers as the creators of the song. The complaint alleges that this registration is for a piano /vocal arrangement of the song.  Another of the things in the “bundle of rights” a copyright owner gets is the right to make a “derivative work” of the underlying work, such as an arrangement or adaptation. Turning a novel into a film constitutes making a derivative work, which is why the novelist gets paid when the film is made.

For example, the song “Simple Gifts” is a Shaker hymn from the nineteenth century.  Most people know it from Aaron Copland’s arrangement of the tune in his ballet, “Appalachian Spring.” As the original song is PD, anyone can perform the original melody and lyrics or make their own arrangement. But, if you want to use Mr. Copland’s treatment of the work you’ll need permission from Copland’s publisher, Boosey & Hawkes.  So, if the underlying song, “Happy Birthday to You” turns out to be in the public domain, anyone can use it and make their own arrangement of it, as long as they don’t use any particular copyrighted arrangement of the work, such as ones owned by Warner / Chappell.  And, of course, you can write a new song, with your own melody and lyrics, and call it “Happy Birthday to You” as titles are not copyrightable.