US Marine Corp. Provides Music In Response To FOIA Request, But Warns That Publishing It May Infringe On Copyrights

from the ain't-that-always-the-way dept

Thu, Apr 25th 2013 8:20am — Mike Masnick

A few months ago, we wrote about a Freedom of Information Act (FOIA) request made by Muckrock for the backing tracks recorded by the US Marine Corp. band for use during the Presidential inauguration. As was pointed out at the time, under US copyright law, works produced by federal employees are automatically considered in the public domain, and so Muckrock sought those tracks, including the one famously used by Beyonce for her performance. Some of the works have been delivered to Muckrock, but the Marines and various copyright lawyers have warned Muckrock's Michael Morisy that actually publishing some of the works would open him up to charges of copyright infringement. That's because two of the songs delivered by the band are still covered by copyright on the composition.

Liberty Fanfare by John Williams, composed in 1986
Chant and Jubilo by W. Francis McBeth, composed in 1961

To be clear, there are a couple different copyright issues here. The copyright on the composition is still held by the copyright holders in question. There is no copyright on the sound recording of the performance, since that's a federal government creation. But just because the recording is public domain, it doesn't mean you can ignore the composition rights. As the response to the FOIA request notes:

Please be advised that the recorded sound of the Marine Band is in the public domain and as such is provided per the FOIA request. However, even though the Marine Band's sound is in the public domain, the musical selections still may have copyright encumberances attached to them. It is entirely the requestor's responsibility to give all necessary notices, acquire all copyright clearances, and pay all required fees as necessary for any use of copyrighted music. Every music title should be researched. We cannot relieve anyone of their responsibility to obtain licenses or permission from the various copyright holders and/or music publishers involved. Neither the Marine Corps nor the Marine Band accepts any responsibility for any use of Marine Band sound other than our own distribution

Because of this, Muckrock is withholding the release of most of these (it does appear to have posted two of the songs) until it believes that all of them will be free from copyright issues. Not surprisingly, this is well past when you or I will probably be alive.

And when is that expiration date? That's complicated, partially since Williams, whose soundtracks often seem to singlehandedly power Hollywood, is still alive: copyright covers the life of the artist, plus 75 years for good measure. We wish Williams the best and, with unbound optimism, hope he will live to 115. Thus we estimate that we'll be able to post the music in 2122.

But copyright also has a pesky habit of extending itself, again and again. The Copyright Act of 1976 set copyright protection to last life of author plus 70 years, and then the 1998 Copyright Term Extension Act extended copyright to life of author plus 75 years, with some special cases.

When I asked one of our legal advisors when we could safely release the files, I was told, "Never."

Comforting, huh?

As for the Beyonce backing track? The Marines said basically, "hey, that music is Beyonce's, and go contact her lawyer if you want a copy of it." Of course, I'm not sure that's correct, since, once again the sound recording of the backing track (i.e., without the lyrics) should be in the public domain, even if the composition is not.

There is one more wrinkle in all of this. Under the FOIA, the government is required itself to post online for download works that have been requested multiple times. Thus, as Muckrock notes, if a bunch of people all make a similar request to the one he did, at some point soon, the US Marine Corp. may be required to post the tracks. That, of course, would raise an interesting question. If it does so, would the US government then be violating the copyrights of John Williams? My guess is that if it got to that, the Marine Corp. would either ignore the requirement to post, arguing that copyright blocks it, or if it actually did post the tracks, perhaps it would claim sovereign immunity against any legal threat.

4 5 13 mr2552 RES (PDF)4 5 13 mr2552 RES (Text)

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Filed Under: foia, marines, michael morisy

31 Comments

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jupiterkansas (profile), 25 Apr 2013 @ 8:40am

The Marine Corp. would either ignore the requirement to post, arguing that copyright blocks it, or if it actually did post the tracks, perhaps it would claim sovereign immunity against any legal threat.

Or get permission from the rights holders - much easier for the Marine Corp. to get than for Muckrock.
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- ltlw0lf (profile), 25 Apr 2013 @ 12:03pm
  
  Re:
  Or get permission from the rights holders - much easier for the Marine Corp. to get than for Muckrock.
  
  They already got permission, most likely, to use the music. The problem is that their license to use the music is not transferable.
  
  I play for a community band, and we routinely get licenses from composers to play their music for free. We don't receive money for our performance of their work. On most of the music sheets, it says that a license is granted to perform the work, so long as no profits are received from the performance.
  
  However, we've tried to record the performances on multiple occasions, to put online on YouTube or make the audio available, and every time, we've run into a brick wall. The license is only for performing it for free, not making the recordings of the performance available.
  
  I suspect the Marine Corps would run into the same situation if it went to license for Muckrock and others.
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  - jupiterkansas (profile), 25 Apr 2013 @ 1:06pm
    
    Re: Re:
    Yes, but the Marine Corp. has the clout and money to get people to negotiate with them. That option is wide open for them, although they still can't offer the work as true public domain material.
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    - ltlw0lf (profile), 25 Apr 2013 @ 4:25pm
      
      Re: Re: Re:
      Yes, but the Marine Corp. has the clout and money to get people to negotiate with them. That option is wide open for them, although they still can't offer the work as true public domain material.
      
      Why does the Marine Corps, which should be spending money frugally on stuff they need to remain the best in the world militarily, have to spend their money to distribute copyrighted material to the citizens for free? Quite frankly, as a taxpayer, I am quite appalled at the suggestion. The military should spend its money doing what it is mandated to do, and stop wasting it on pet projects.
      
      If they could, through influence, get the copyright owner to release it for free, then fine. But them paying so that the public gets it for free, the GAO audit on that one would be frightening.
      
      Nope, the best way to handle this was the way they handled it...comply with the FOIA, with the caveat that publishing it may infringe on copyrights.
      
      The better way to solve this would be to tackle copyright instead of throwing more money at something they aren't even mandated to do in the first place. Why someone should get imaginary rights to someone elses' work needs to be fixed. If I pay you for a hammer, I don't have to keep paying you each time I hit a nail. The composer already got their pay when the Marine Corps licensed the music, and thus should be free to distribute the results of their labor. If I copy your work, fine...(though I'd prefer we figured out a better way of you getting paid,) but if I take your work on paper and transform it into vibrations of air molecules due to my skill and effort, why should you get paid again if I want to distribute that work?
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      - jupiterkansas (profile), 25 Apr 2013 @ 10:31pm
        
        Re: Re: Re: Re:
        If you want to talk about waste, why does the Marine Corps have a band?
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        ltlw0lf (profile), 26 Apr 2013 @ 8:16am
        
        Re: Re: Re: Re: Re:
        If you want to talk about waste, why does the Marine Corps have a band?
        
        Tradition. There was a time where the bands were only military, as nobody could afford to have a non-military one.
        
        And for the most part, they are cheap (beyond the initial investments,) as payroll isn't as huge as a professional musician (not that they aren't professional, the Navy enlisted MU is usually a college graduate, and they tend to be the highest educated enlisted personnel.) And Marine musicians, like every other Marine, is a rifleman first. But having them pay to give out their music to you for free is a little too much.
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        jupiterkansas (profile), 26 Apr 2013 @ 8:36am
        
        Re: Re: Re: Re: Re: Re:
        so it's okay to pay people to be in the Marine Corp band?
        
        and it's okay to pay to fly them around the country for events?
        
        and it's okay to pay for a recording studio to record their music?
        
        and it's okay to pay for CD recordings that I believe are given away for free to libraries around the country?
        
        and it's okay to pay any licensing fees to make those CD recordings?
        
        but it's not okay to pay a licensing fee to make those recordings available for free online? That's a waste of tax money? Even though that licensing fee is probably the cheapest part of anything I've listed? Even though the tax payer benefits with free music?
        
        The real waste is that a composer can't be patriotic and give a piece of music to their country by putting their work in the public domain, since EVERYTHING is copyrighted with no exceptions.
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Anonymous Coward, 25 Apr 2013 @ 8:55am

They got the copyright terms wrong.
The 1976 act set the term at life plus 50 years, then the 1998 act added another 20 years across the board, raising the term to life plus 70.
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Anonymous Coward, 25 Apr 2013 @ 8:55am

If posted at some future date by the USG a rights holder's recourse would be pursuant to 28 USC 1498(b), the section of federal law relating to copyright infringement by the USG.
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Anonymous Coward, 25 Apr 2013 @ 8:58am

Copyright fucking things up in the most asinine ways again as always.
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MikeW (profile), 25 Apr 2013 @ 9:01am

Fixing copyright--or not
Let's have them do this and then face the trolls. Maybe if taxpayer money is going to pay off trolls, then the deficit hawks in congress will actually do something to fix copyright.

Or at least, that would happen in a sane world, but with all of the tax dollars going to parasites already with nary a peep from the self-proclaimed deficit hawks, we shouldn't get our hopes up.
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- Anonymous Coward, 25 Apr 2013 @ 9:15am
  
  Re: Fixing copyright--or not
  What do you mean, "trolls"? Do you really think it takes a troll to object to the US government putting their copyrighted material on a website just because they performed for them once?
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  - Anonymous Coward, 25 Apr 2013 @ 9:21am
    
    Re: Re: Fixing copyright--or not
    I hope the US government gets sued for millions of dollars for stealing music.
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out_of_the_blue, 25 Apr 2013 @ 9:22am

Questions: What the heck is "Muckrock"? Why should I care?
And why can't Muckrock just get the needed permissions?

Those should have been answered up there, but I'm sure will go unanswered. -- Nor are any easy answers from the prior piece, as the main link didn't come up.

But I'm pretty sure lack of this tune has not nor ever will in the least diminish my enjoyment of life, nor that of anyone I've ever known. I'll just fill the silence with French Affair's "Comme ci, comme ca", or any of many others that I do have.

Just Mike's characteristic unexplained factoid anomaly by which he makes HIGHLY ellliptical attack on copyright, while ignoring its everyday millions of counter-examples that do good for authors.
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- Anonymous Coward, 25 Apr 2013 @ 9:34am
  
  Re: Questions: What the heck is "Muckrock"? Why should I care?
  Two better questions...
  What the heck is "Out_of_the_Blue"?
  Why should we care?
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  - Anonymous Coward, 25 Apr 2013 @ 10:25am
    
    Re: Re: Questions: What the heck is "Muckrock"? Why should I care?
    Two better questions...
    What the heck is "Out_of_the_Blue"?
    Why should we care?
    
    OOTB is a troll/shill who gets turned on whenever someone gets screwed by copyright. We should care because people like him are what keep us from exercising our natural right to share.
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- Anonymous Coward, 25 Apr 2013 @ 9:37am
  
  Re: Questions: What the heck is "Muckrock"? Why should I care?
  Never mind authors, what about the billions of counter-examples that do good for everybody. This very post is copyrighted and I am so very grateful for that very fact.
  
  If copyright didn't exist then I surmise that nothing would exist, I mean, why else would people do anything if it weren't for copyright? We need more copyright. We need more enforcement. We need longer beneficial copyright terms. We need to get rid of fair use and replace it with exclusionary rights. We need to copyright everything, even the stuff in the public domain.
  
  Anything else would just be criminal.
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  - Anonymous Coward, 25 Apr 2013 @ 12:58pm
    
    Re: Re: Questions: What the heck is "Muckrock"? Why should I care?
    "Never mind authors, what about the billions of counter-examples that do good for everybody. This very post is copyrighted and I am so very grateful for that very fact."
    
    Why?
    No one would want to pay for, or reuse, such tied, non-original, material for anything.
    So the copyright serves only to give you pleasure while you wank off to it.
    Enjoy.
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    - Anonymous Coward, 25 Apr 2013 @ 1:24pm
      
      Re: Re: Re: Questions: What the heck is "Muckrock"? Why should I care?
      All of my wanks are copyrighted.
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  - Anonymous Coward, 25 Apr 2013 @ 12:59pm
    
    Re: Re: Questions: What the heck is "Muckrock"? Why should I care?
    "If copyright didn't exist then I surmise that nothing would exist, I mean, why else would people do anything if it weren't for copyright?"
    
    Ask Leonardo DiVInci.
    Ask Homer (the poet, not the cartoon character)
    Ask Michaelangelo.
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- Gwiz (profile), 25 Apr 2013 @ 9:48am
  
  Re: Questions: What the heck is "Muckrock"? Why should I care?
  Questions: What the heck is "Muckrock"? Why should I care?
  And why can't Muckrock just get the needed permissions?
  
  Muckrock is a Freedom of Information Request service.
  
  https://www.muckrock.com/about/
  
  Those should have been answered up there, but I'm sure will go unanswered.
  
  Most people actually know how to use the Internet.
  [ link to this | view in chronology ]
- Gwiz (profile), 25 Apr 2013 @ 9:57am
  
  Re: Questions: What the heck is "Muckrock"? Why should I care?
  Nor are any easy answers from the prior piece, as the main link didn't come up.
  
  ???
  
  I was able to follow the the links with no problem and ended up at this page which explains it:
  
  https://www.muckrock.com/news/archives/2013/jan/22/public-domain-beyonce-thank-president/
  
  You're not even trying today, Blue. Having an off day?
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- Anonymous Coward, 25 Apr 2013 @ 6:48pm
  
  Re: Questions: What the heck is "Muckrock"? Why should I care?
  get yourself some better innerwebs blue; link performs as advertised
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AG Wright, 25 Apr 2013 @ 9:35am

Dr. McBeth's family
I grew up in Arkadelphia AR and knew Dr. McBeth. He just died last year and I believe Mary is still living. There and there is bound to be a way to get permission to release that recording.
John Williams, well I don't know him so I can't make any suggestions there.
I would bet that Ouachita Baptist University, where Dr. McBeth taught, would be able to help with that permission.
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S7, 25 Apr 2013 @ 10:03am

Surprised they didn't send them a redacted CD.

20 minutes of the "Brown Note" should keep them freetards away.
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- Vidiot (profile), 25 Apr 2013 @ 10:36am
  
  Re:
  "Surprised they didn't send them a redacted CD."
  
  ... with a black magic marker stripe tracing the offending spiral track.
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Anonymous Coward, 25 Apr 2013 @ 10:05am

Actual primary lesson to be learned from this story: a few specific individuals have too much time on their hands.
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madasahatter (profile), 25 Apr 2013 @ 1:49pm

An Interesting Quirk
The Marine Corps Band recording is public domain but the actual music played is not necessarily public domain. The warning is proper and reasonable; make sure you have the proper permissions before posting for the music.

I wonder how many people fail to realized there are often multiple copyrights on a performance.
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JP Jones (profile), 25 Apr 2013 @ 2:52pm

It's Marine Corps, not Marine Corp.. There is no Marine Corp., at least not as a military organization.

Just a FYI; any Marines reading this probably winced as hard as I did (I'm currently on active duty).
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Marvin Price, 26 Apr 2013 @ 6:33am

Band
When you read any article and begin to find errors it leads one to question the entire scope of said article and all others by the same author or orginization. That is exacly what happened the second I laid eyes on this article. It is United States Marine Corps not Corp. And the proper name for the band is the Marine Band not Marine Corps Band. Some might consider this trite but not for those of us who wore the eagle, globe and anchor. The ABCs of journalism are accuracy, brevity and clarity.
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Anonymous Coward, 16 Jan 2017 @ 5:50am

They are probably alluding to synchronization fees. I just had to file a Content ID dispute on YouTube for a USMC-performed work on a public domain composition, because the conductor (or a third party) decided to attach it to Content ID. I'll update if it devolves into a DMCA notice.
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