Obtaining the Playlist from Guantanamo

Once a prison guard purchases a copy of his favorite Nine Inch Nails CD, he is free to play it on his boombox. He is free to put a particular song on "repeat" and to play it as loud as he wants to.
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The rock duo Heart, Ann and Nancy Wilson, were upset last fall when the GOP borrowed their '70s hit Barracuda as the theme for VP candidate Sarah Palin, and used it without their permission. So were John Mellencamp, the band ABBA and a host of other artists, who complained about the use of their songs during McCain-Palin campaign appearances.

This lack of respect for the sensibilities of songwriters and musicians has taken a decidedly strange twist, as it was revealed last week that popular music is often used in conjunction with interrogations at Guantanamo Bay and other US prison facilities around the world. A coalition of US and international musicians, including Trent Reznor, R.E.M., Pearl Jam, Jackson Browne, Rise Against, Rosanne Cash, Billy Bragg and the Roots announced that they are joining the National Campaign to Close Guantanamo, formally protesting the use of music used in conjunction with prisoner interrogation, and supporting an effort seeking the declassification of all secret government records pertaining to how music was utilized as an interrogation device.

Among other things, the Campaign to Close Guantanamo alleges in a press release that some prisoners were subjected to music being played for 72 hours straight at volumes just below that sufficient to shatter the eardrums. The unhappy musicians include Tom Morello of Rage Against the Machine, whose music, according to public records, has been used at Guantanamo. In a statement released by the Campaign to Close Guantanamo, Morello said: "The fact that music I helped create was used in crimes against humanity sickens me -- we need to end torture and close Guantanamo now."

From a legal perspective, however, speaking out and protesting appear to be their only remedy. Copyright and other laws relating to the use of music only go so far. They didn't protect against the use of Barracuda for Ms. Palin, and they don't protect against the use of music to interrogate prisoners.

On the other hand, copyright did protect Jackson Browne, who successfully filed suit for the use of his song Running On Empty in a McCain campaign commercial, obtaining a settlement that included a public apology, as well as a pledge to license copyrighted works and to respect artists' rights in future campaigns.

Why are some unauthorized uses actionable, but others aren't?

The answer is that while the US Copyright Act grants those who create things very broad rights to control the use of their creative works, these rights are not exhaustive. With respect to songs, the Copyright Act gives a songwriter the exclusive rights to the following uses of the song (or to grant a license or permission to someone else to do so): record the song for the first time, manufacture and distribute recordings of the song, perform the song publicly, and use the song in a movie, television show or other so-called audio-visual work. Bands and performers who make records have similar but not identical rights in their particular recordings, including the right to manufacture and distribute their recordings, and to grant permission (or not) for the use of the recording in an audio-visual work. In other words, the songwriter and the recording artist each have separate streams of income flowing from, respectively, the use of the song itself as well as the recording of the song. This is necessary to protect songwriters who may not be performers (the songwriter get paid for the song each time it is sold in a record, no matter who the recording artist is), and protects recording artists who may not write their own songs (they get paid for sales and other uses of their particular recording of the song).

Using the case of Browne v. McCain as an illustration, Mr. Browne did both -- he composed the song Running on Empty and recorded it for the first time (in a hotel room) in 1977. As the recording artist, he granted his record company, Elektra (now Rhino) a license to manufacture and distribute copies of his recording of the song, and as the songwriter, he granted Elekta the right to use his song on the record. So when the McCain campaign decided to use Mr. Browne's recording of Running On Empty in the campaign commercial, it first needed to get permission from Mr. Browne for the use of his song, and it also needed to get permission from Mr. Browne's record company for the use of the recording. The campaign, however, didn't bother even to ask, which meant that the uses of the song and the recording were infringing.

Contrast that with the use of Barracuda in live campaign appearances featuring Ms. Palin. Ann and Nancy Wilson were among the four songwriters of Barracuda, and as such, had the right under the Copyright Act to control the "public performance" of their song at the Republican Convention and at campaign rallies throughout the country. However, songwriters typically affiliate with a so-called "public performance society" such as ASCAP or BMI, whose business it is to license public venues with the right to perform all the songs in the ASCAP or BMI catalog. In fact, Ann and Nancy Wilson are affiliated with ASCAP, which meant that the use of Barracuda was covered by the venue licenses granted by ASCAP (and a "traveling license" granted to the campaign to cover uses of the songs in public places not subject to venue licenses, such as parks.) The bottom line -- Ann and Nancy Wilson could and did complain loudly about the use of their song without their permission -- but they had no legal recourse.

Unfortunately, the objectionable if not ghastly alleged use of music at Guantanamo is surely neither a "public performance," nor does it otherwise implicate any of the exclusive rights of the songwriters or recording artists. Once a prison guard purchases a copy of his favorite Nine Inch Nails CD, he is free to play it on his boombox. He is free to put a particular song on "repeat" and to play it as loud as he wants to play it. From a copyright standpoint, it is no different than playing the CD in his car or his living room.

Unfortunately this means that other than using the Guantanamo playlist for the purpose of gathering rock star support for the Campaign to Close Guantanamo, or to urge Congress to add a provision to the Copyright Act forbidding the use of music during prisoner interrogation absent a license or permission (after all, who would grant permission for that?), there simply is no lawsuit to be filed to enjoin the use of music as part of the interrogation process.

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