Is The Backing Track To Beyonce's Rendition Of The Star Spangled Banner In The Public Domain?

from the worth-asking dept

Tue, Jan 22nd 2013 12:33pm — Mike Masnick

As we've discussed in the past, works created by the federal government are automatically in the public domain under section 105 of US copyright law:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

So... that would suggest that musical works created by the federal government should be in the public domain, right? And... according to the Times of London, the performance of the Star Spangled Banner by Beyonce at President Obama's inauguration, was actually pre-recorded by the Marine Corp. Band, and then lip synced by Beyonce. Last we checked, the Marine Corp. Band is a part of the US government, meaning that recordings it creates should be in the public domain. So... is that recording in the public domain? The good folks at MuckRock have decided to find out by filing a Freedom of Information Request for the backing track.

This is a request under the Freedom of Information Act. I hereby request the following records:

A copy of the backing track used during Beyonce's Inauguration performance, as well as copies of other backing tracks created in preparation for Inauguration events, whether or not they were actually used.

The existence of these documents was disclosed by a spokeswoman for the Marine Corp Band to The Times of London

The performance by Beyonce could still be covered by copyright, since she is not an employee of the government, but that backing track almost certainly should be in the public domain. Of course, it's unclear to me if, even if the track is in the public domain, the federal government has an obligation to hand it over as part of FOIA request, but it seems like it's at least reasonable to ask.

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Filed Under: backing track, beyonce, copyright, foia, inauguration, marine corp. band, obama, public domain, star spangled banner

23 Comments

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Oblate (profile), 22 Jan 2013 @ 12:56pm

Not a governement employee, but...
Would this count for a work-for-hire by Beyonce? I'm assuming she was paid, or volunteered for this work. IANAL, so can anyone say how this would affect the copyright status?
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- Anonymous Coward, 22 Jan 2013 @ 1:20pm
  
  Re: Not a governement employee, but...
  It would seem that this is likely. I assume there was some compensation for it, and as such it would be work for hire paid for by the federal government.
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- Duke (profile), 22 Jan 2013 @ 1:23pm
  
  Re: Not a governement employee, but...
  Usually (as in, in most jurisdictions I am familiar with) the work-for-hire default status can be overridden by a contractual term. So we would need to see the contract between whoever was involved. However, that might not override the s105 provision mentioned above.
  
  Plus there's also the issue of who owns the original copyright in a sound recording; in the EU (iirc) that is the producer of the recording, not the artists. So it may be that if Beyonce (or her minions) produced the record and the Marine Band merely performed, then the copyright might still exist - depending on your interpretation of s105; anyone know the case law on that?
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Anonymous Coward, 22 Jan 2013 @ 1:07pm

Every rendition of the star spangled banner ever should just be public domain by default regardless of who sings them and what track was backing them.
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Vic, 22 Jan 2013 @ 1:08pm

Expect to see it (hear it?) heavily redacted... 8^)
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- DannyB (profile), 22 Jan 2013 @ 2:06pm
  
  Re:
  > Expect to see it (hear it?) heavily redacted... 8^)
  
  To protect state secrets.
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  - Jeremy Lyman (profile), 23 Jan 2013 @ 8:05am
    
    Re: Re:
    Just got a peek at the transcript:
    
    ______ can you see by the ______,
    What so ______ we hailed at _____,
    Whose broad ______ and bright ______ through the ______ fight,
    O'er the ______ we watched, were so gallantly ______?
    And the ______ red ______, the ______ bursting in ______,
    Gave ______ through ______ that our ______ was still ______;
    O say ______ that ______ yet wave,
    O'er the ______ of the ______ and the ______ of the ______?
    
    Looks like we're still safe from the 'terrists.
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Alex Curtis (profile), 22 Jan 2013 @ 1:11pm

it was prerecorded and lipsync'd
according to the NYTimes and The Marine Band, it was pre-recorded (at the Marine's studio) and lipsync'd:

http://artsbeat.blogs.nytimes.com/2013/01/22/marine-band-confirms-beyonce-inauguration -performance-was-pre-recorded/
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- Mike Masnick (profile), 22 Jan 2013 @ 1:57pm
  
  Re: it was prerecorded and lipsync'd
  according to the NYTimes and The Marine Band, it was pre-recorded (at the Marine's studio) and lipsync'd:
  
  as mentioned in the article...
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jupiterkansas (profile), 22 Jan 2013 @ 1:19pm

The Marine Band Website offers lots of free digital downloads including some music that is still under copyright.

Under Educational Recordings there's this disclaimer: The Marine Band produces recordings for educational purposes and to enhance the public affairs and community relations of the United States Marine Corps. The recordings are distributed free of charge to educational institutions, public libraries, and radio stations. Because appropriated funds are used, they may not be distributed for private use and are not for sale.
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Anonymous Coward, 22 Jan 2013 @ 1:30pm

WHO CARES?

Go spend some time with your kid, for fuck's sake.
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- Rich, 22 Jan 2013 @ 1:49pm
  
  Re:
  Wow, is that best you could come up with?
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- Anonymous Coward, 22 Jan 2013 @ 6:27pm
  
  Re:
  Put up a link the video on your site, then get six strikes, then get your Internet wiped out.
  
  Perhaps you'll care.
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Anonymous Coward, 22 Jan 2013 @ 1:49pm

I'd say the government should have an obligation to hand it over if the citizen wants it. The government is supposed to serve the people, and the people have the right, not privilege, to a work created by a government entity using taxpayer dollars and under the public domain.

In theory, of course. In practice, the RIAA will probably tell them to say no, because that's who the government is really for these days.
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Griffdog (profile), 22 Jan 2013 @ 2:01pm

For the fans
Beyonce could engender huge amounts of popularity if she worked with the Marine Corps Band to release the song into the public domain. The goodwill would probably even spill over to President Obama. Thousands of little league games, high school basketball games, and other venues could use the track to kick off events.

It's not as if she'd ever try to sell this track; might as well make it available in exchange for a long-lasting boost to her name recognition. Might even start a trend.
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Anonymous Coward, 22 Jan 2013 @ 2:21pm

The TV stations will claim it anyhow, as anything they put out must be their copyright.
/s
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Anonymous, 22 Jan 2013 @ 4:42pm

Wow, a pop star who can lip-sync AND suck up to the government at the same time. What talent.
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Brave Sir Robin, 23 Jan 2013 @ 4:29am

Hmmm? Are we confusing "government" and "state"? I would think the only countries were the army (and its bands) are part of the government are official military dictatorships...
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- DogBreath, 23 Jan 2013 @ 11:04am
  
  Re:
  Then it's clear. The U.S. has been an "official military dictatorship" since July 11, 1798.
  
  United States Marine Band
  
  "The United States Marine Band is the premier band of the United States Marine Corps. Established by act of Congress on July 11, 1798, it is the oldest of the United States military bands and the oldest professional musical organization in the United States."
  
  "The Marine Band recruits experienced musicians; members are selected through a rigorous audition procedure and must satisfy additional security and physical requirements to be eligible. Selected band members serve under a four-year contract as active duty enlisted Marines and are subject to the Uniform Code of Military Justice and physical standards."
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Anonymous Coward, 23 Jan 2013 @ 5:17am

clarification?

so who owns the copyright of an audio recording?

if i take a picture, me, the camera user, owns the copyright to that image. say i take a picture of a famous painting. i own the rights to that picture... but not to the image of the painting.

so if i record someone singing, obviously i do not own the song, but, do i own the recording?
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- G Thompson (profile), 26 Jan 2013 @ 9:30pm
  
  Re:
  so if i record someone singing, obviously i do not own the song, but, do i own the recording?
  
  Logically: Yes
  Legally: Maybe
  In reality: Depends if you want to be dragged through the courts or not
  
  If you are not confused it just means you haven't been paying attention ;)
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Peter Hirtle, 23 Jan 2013 @ 6:52am

Multiple copyrights...
The performance by the Marine Corps band would be in the PD, as per Section 105, as Mike points out. We don't know who made the recording, though. It could be that Beyonce and/or the government brought in an outside recording engineer. We would need to know the terms of the employment contract for the music. And we don't know who wrote this arrangement of the Star Spangled Banner. It would have its own copyright, unless it was crafted by a federal employee.

Unfortunately an FOIA request for the backing tracks would likely say nothing about copyright status of the work.
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Robert Reeves, 23 Jan 2013 @ 3:52pm

I could not really tell she was lip syncing, but thank for this information. IT is very interesting to hear about this kind of stuff.
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