Tormenting Gitmo detainees with copyrighted music: Is torture a “fair use”?

Several commentators have recently pondered whether songwriters who object on moral grounds to use of their music in this fashion might be in a position to enjoin such activity. (See the Patry Copyright Blog here, and an article in the U.K.’s The Register here.) I decided to take the legal analysis to a more prosaic level by simply inquiring whether royalties might not already be due and owing songwriters and music publishers for infringement of the performance rights in their works.

After all, songwriters need the money. Music-as-torture seems to offer rare growth potential in an industry otherwise in distress, ravaged by revenue losses brought on by digitization and its consequences: downloading, file-sharing, and the demise of the album. In previous years, we would, only once in a great while, see our government use copyrighted music — mainly hard rock and heavy metal classics — to break down a foe’s will to resist. We saw it used in Panama, for instance, to drive Noriega from his palace and then, years later, in Waco, Texas, against David Koresh and his Branch Davidians (with unanticipated results). But with the arrival of the War on Terror and our liberation from previously crabbed interpretations of international human rights commitments, high-decibel music may now be becoming a fairly routine interrogation tool used in Guantanamo, Iraq, Afghanistan, and, perhaps also, an archipelago of secret C.I.A. prisons across Eastern Europe. I’m speculating, but for Van Halen, Metallica, the estate of Jimi Hendrix, and certain rap artists we might already be talking real money here. Likewise, Barney the Dinosaur’s excruciatingly monotonous “I Love You” theme (see Patry post and links therein) has apparently been found by military intelligence officials to possess powerful, yet so far entirely unrecompensed, coercive properties. (I should acknowledge up front that the Bush Administration denies any use of “torture” anywhere in the world; whenever I use that term in this article I am using it only in its nontechnical, lay sense, the way the rest of the world seems to understand it.)

For my research, I asked three eminent copyright scholars the pertinent, if ordinarily un-askable, questions. Though sometimes ill at ease, they obliged me in the spirit of grappling with a preposterous law-school exam question.

At the outset, of course, my experts all noted that the U.S. Copyright Act only applies to infringements in the U.S., and they were uncertain of the nuances of the applicable laws abroad (particularly in the secret prisons, if they exist). William Patry, the author of a magisterial new treatise on copyright law (see here and my earlier post here), reminded me, however, that thanks to former ambassador Paul Bremer’s puzzling priorities, Iraq does now have a copyright law much like our own. Both Patry and professor Jane Ginsburg, of Columbia Law School, also thought that Guantanamo would be treated as a part of the United States for these purposes, bringing the largest potential source of new royalty streams within the purview of the Act. Ginsburg noted, too, that one might even be able to argue that, to the extent U.S. officials were using music on U.S. bases in this fashion, the U.S. copyright law should “follow the flag,” though she acknowledged that this would be an aggressive interpretation. (While the U.S. would probably not be protected from royalty demands by sovereign immunity, songwriters would have to sue in the U.S. Court of Claims, where there are no juries and damages are circumscribed, both Patry and Ginsburg observed.)

The key hurdle to royalty recovery that all the experts homed in on first was the songwriters’ obligation to establish that bombarding prisoners with loud music in locked cells inside walled prisons could be considered a “public” performance. Nevertheless, the Copyright Act provides that the copyright holder’s performance right will attach even to a performance held in a private place “where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” Certainly the Branch Davidian compound near Waco would seem to meet that definition. My panel of experts felt that even an interrogation held inside a sweltering container car in Guantanamo or Iraq might conceivably qualify as “public” under that provision, depending on how many interrogators and detainees were present at the time. “One soldier, one detainee?” says Patry, “I would think not.” But if you had a small group of interrogators in there it would present a more difficult question, he says. “It’s not a group of friends or social acquaintances.”

If the playing of music as an adjunct to interrogation did count as a public performance, the obvious next question would be whether the government could defend its nonpayment of royalties by arguing that it was making a “fair use” of the works in question. Here my experts parted company with one another. Patry thinks fair use would be a “tough” argument for the government to make. It’s certainly not one of the usual fair use exceptions, he says, like excerpting a work for purposes of scholarship, teaching, news reporting, or creating a new work of art. “They’re not using the work for criticism or comment,” he continues. “Quite the opposite.”

But Fred Koenigsberg of White & Case — who also serves as ASCAP’s general counsel — thought the fair use argument to be a weightier one. Referring to some of the key factors to be weighed in any such an analysis, he notes that interrogators are clearly not using the music for a commercial purpose and that the government could argue that, indeed, they’re using it for purposes “relating to public safety and welfare, and to aid law enforcement” — all factors that would weigh in favor of granting a fair use defense. Likewise, he notes, the effect of military use of the music on its existing commercial markets seems to be negligible. “Fair use would not be a laughable claim” in this context, he concludes.

In hypothetical rebuttal, Ginsburg suggests that the songwriters might contend that “if word gets out that their music is being used for these purposes, it might [well] have a deleterious effect on the commercial market for the music.” (This might be a stronger argument for the publishers of Barney the Dinosaur’s songs than for the publishers of the Metallica catalog.)

Clearly, no songwriter should imagine that collecting royalties for use of their works in Gitmo interrogations will be a slam dunk, let alone a windfall or future annuity. Yet as more traditional revenue streams for artists dry up, songwriters can’t afford to be leaving money on the table — or the gurney, as the case may be. Music-as-an-instrument-of-torture does at least seem to offer the promise of a growing market segment: a rare bright light amid the general gloom.