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

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.

Filed Under: foia, marines, michael morisy