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Little Legal Recourse For Artists’ Rage Against Musical Torture

One of the obvious questions from the announcement of the musicians Rage Against Musical Torture, and one that several people have been asking, is what avenues of legal recourse do the musicians have? It turns out remarkably few, if any.

A look at the recent case of Jackson Browne v. John McCain demonstrates why. Here is a link to the complaint in Browne v. McCain; as you can tell, Plaintiff Browne pled four causes of action for the wrongful use of his music. The four counts are copyright infringement, vicarious copyright infringement, violation of the Lanham Act and violation of state law (California) right to publicity. (You can see the court’s rulings upholding the viability of these counts at the links provided here).

The lead count of copyright infringement is based upon 17 USC 501 et seq. The specific triggering conduct is delineated in 17 USC 106-122. Unlike in Browne, there really is no provision of the applicable law that comes into play. In Browne, there was an appropriation for use in a campaign commercial, that was broadcast on television and the internet, and the conduct happened in the United States; none of that is the case, unfortunately, for the musicians here. There was no “commercial use”, there was no “secondary broadcast”, and the putative conduct did not occur within the United States.

The key here is the nature of the use. As horrid as the conduct of using the artists’ music for torture is, there is no evidence that the governmental actors, whether soldiers, CIA or contractors, obtained the music illegally. Furthermore, there is no evidence that they used the music for a “commercial purpose”. It was not broadcast, nor was it played in a public setting; there is legally little to nothing to distinguish what was done from a person playing his boom box or stereo too loud in his apartment building. In short, there does not seem to be a “copyright infringement”. The same rationale explains why there is no apparent RIAA violation. Also, since there was no cognizable copyright violation, there was no “vicarious copyright infringement” as was present in Browne.

The next common count to proceed in these situations is via the “Lanham Act“. Here, again, the facts simply do not truly reach the scope of the claim. There is no legal basis for asserting that the restricted use made of the artists’ music would create confusion or imply that the artists approved of the torture; and, again, the conduct was not done in a public setting or Read more

Rage Against Musical Torture

On Tuesday, I reported a new campaign to close Gitmo (the campaign website is now live). Today, a bunch of musicians are the joining the National Campaign against Torture to FOIA information on how music was used in the government’s torture program.

Pursuant to the Freedom of Information Act (FOIA), I hereby request the following:

All documents, including but not limited to intelligence reports, briefings, transcripts, talking points, meeting minutes, memoranda, cables, audio/visual recordings and emails produced by the Central Intelligence Agency concerning the use of loud music as a technique to interrogate detainees at U.S.-operated prison facilities at Guantanamo, Iraq and Afghanistan during 2002-the present.

The documents we seek include but are not limited to records that contain explicit references to the following bands or songs, among any other bands or songs mentioned:

AC/DC

Aerosmith

Barney theme song (By Bob Singleton)

The Bee Gees

Britney Spears

Bruce Springsteen

Christina Aguilera

David Gray

Deicide

Don McClean

Dope

Dr. Dre

Drowning Pool

Eminem

Hed P.E.

James Taylor

Limp Bizkit

Marilyn Manson

Matchbox Twenty

Meatloaf

Meow mix jingle

Metallica

Neil Diamond

Nine Inch Nails

Pink

Prince

Queen

Rage against the Machine

Red Hot Chili Peppers

Redman

Saliva

Sesame street theme music (By Christopher Cerf)

Stanley Brothers

The Star Spangled Banner

Tupac Shakur

If you regard any of this material as potentially exempt from the FOIA’s disclosure requirements, I request that you nonetheless exercise your discretion to disclose them.  As you know, President Barack Obama has called upon all agencies to “adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.” As the FOIA requires, please release all reasonably segregable, nonexempt portions of documents.  To permit me to reach an intelligent and informed decision whether or not to file an administrative appeal of any denied material, please describe any withheld records (or portions thereof) and explain the basis for your exemption claims.

Among the musicians joining the campaign are Trent Reznor and Tom Morello whose music is among those used in the government’s torture program. As Morello says, “The fact that music I helped create was used in crimes against humanity sickens me – we need to end torture and close Guantanamo now.” And Jackson Browne–fresh off his victory against McCain and the Republican party for stealing his music–is also joining the campaign.

Me, I hope we can recruit Barney and Big Bird to join the campaign.

This part of the campaign is a great way to show how our nation’s practice of torture perverts our everyday culture.