Performing Music for Torture at Guantanamo - What are the Copyright Issues?

(sculpture of José Antonio Elvira in Guantánamo, a city in southeast Cuba. Wikimedia)

The issues of music as torture is once again back in the news, since a Canadian band named Skinny Puppy reportedly sent an invoice to the US Government for $666,000 for the alleged use of their "industrial dance" music without permission for this purpose. 

Having been among the first - maybe even the first - to write about this issue from a copyright standopint back in 2008, before President Obama got elected and promised to close down Guantanamo, I got called by the Voice of Russia - formerly Radio Moscow - to be interviewed on this subject. How could I resist this interview, on the eve of #Sochi2014?

Seriously, I agreed to do this interview on the copyright aspects of music as torture because "black humour" is an important component of informed discussion about serious issues. I take no position on the underlying very serious political, diplomatic, military, counter-trerrorism, human rights, etc. issues involved - which are, to say the least, very complex and very serious. I'm just a Canadian copyright lawyer.

Of all of the issues involved with GITMO, copyright is undoubtedly the most trivial - but it's rather interesting, ironic and would make for a fantastic law school exam question or moot.

Anyway, here's the Voice of Russia article, with a link to a voice interview with your's truly.

HPK

A Kaddish for Ketzel, the Komposer

 

 Sivan Cotel

Say a Kaddish (Jewish prayer for the dead) for the elderly Ketzel, the Komposing Kat, who passed away recently in New York at age of 19, which is a pretty good age for a working feline mewsician. Nonetheless, her loss is still catastrophic.

Some may say simply that she “passed.” I must say that I can’t quite get used to the use of the term “passed” instead of “passed away”. I know what it means to say that someone “passed” from Grade 2 to Grade 3.  Or that someone “passed” their bar admission exams. Or that someone “passed gas”. Or has “passed” something else. I’m old fashioned. I  still believe that when someone or some cat has died, they have, at the very least, “passed away”. They have not just simply “passed”.

Ketzel lived on the upper west side of Manhattan, like many sophisticated New Yorkers, and is survived by her mother, Ms. Cheskis-Cotelm. According to Ketzel's New York Times obituary, Ms. Cheskis-Cotelm’s husband, and presumably Ketzel’s father, died in 2008. He was Morris Moshe Cotel, who retired as chairman of the composition department at the Peabody Conservatory in 2000 and became a rabbi. “He said she was his best student and her fame surpassed his,” Ms. Cheskis-Cotel is reported to have said concerning Ketzel, according to the Times.

The Times obituary explains Ketzel's contribution to the world of avant-garde composition with her post-Webern  "“exquisite atonal miniature", Piece for Piano, Four Paws and how Ketzel received her first royalty cheque for a performance in Rotterdam of her one and only but legendary composition in the amount of $19.72.

Such a mewnificent sum goes a long way for most cats in terms of sustenance, and is doubtless much more in both relative and absolute terms than many  ASCAP, BMI and SOCAN (the Canadian counterpart of ASCAP + BMI) members, who are less successful than Ketzel, may see for long stretches of time.

We don't know if Ketzel ever got to collaborate with Norah, the far younger, more famous and far more commercial but still incredibly talented composer/performer shown here:

Norah, who is the feline purrfessional equivalent of Lady Gaga. no doubt, could have purrformed Ketztel’s magnum opus quite well. Either Ketzel or Norah would clearly qualify as a “Magnificat”.

I don't know whether Norah belongs to ASCAP, BMI, or SOCAN (Canada's version of ASCAP + BMI). She has been viewed tens of millions of times on Youtube, as you can see from the above.

SOCAN is vigorously purrsuing a tariff at Canada's Copyright Board on behalf of Norah and many much less successful and less well-known composers for just such activities on YouTube.  So Norah should join up soon, and cash in on doubtless substantial kopyright royalties in the Canadian tradition in addition to her already thriving merchandising business (beware of counterfeit imitations and parallel imports).  Norah, also being a purrformer of some note, surely should join Re:Sound, Canada's neighbouring rights collective - which is rapidly CATtching up with SOCAN in terms of earnings.

I am pawsitive that my esteemed friend, fellow cat fancier, and the reigning Tom Cat of intellectual property law bloggers, the redoubtable Jeremy Phillips,  and his partner Merpel, master and mistress of the IPKat,  could give these creative and highly successful kats more learned and better documented kudos than I can, But I must try, however impurrfectly, to give them some measure of feline fame in the meantime.

So, let us paws at this time to remember Ketzel, the Komposing Kat, whose royalties may eclipse those of many other less successful members of various collectives. Sadly, she is probably now decomposing. 

However, may she not suffer the ravages of those savages who advocate for large and liberal notions of fur dealing and fur use. For the respect of copyright, may  her estate always be asked for all purrmissons, whether required or not. May her royalties live on for at least another 70 years, or nine lives, whichever is longer. And maybe even, as the late Jack Valenti might have said, “furrever less a day.”

HK

PS - The IPKat's tribute to Ketztel replete with links to recent IP Monkey business can be found here. 

Torture Royalties Redux

Well, it seems that my "presumably with tongue firmly planted in cheek" and insouciant question as to whether there should be copyright royalties paid to ASCAP and BMI (the big American performing rights collectives) for the use of music to torture prisoners in Guantanamo, originally posted here on July 3, 2008, has gained some attention on some prominent blogs and in main stream media.

Here's what I said then:

Certain collectives are quick to collect money from those in nursing homes, hospitals, prisons etc. on the basis that these are "public" places. Never mind that the audience is captive and it's their home, like it or not.

Well, it turns out that music is used at Guantanamo for torture purposes, according to the BBC.

Singer David Gray has warned that US interrogators playing loud music as a form of torture - including his own song Babylon - is no laughing matter.

"Only the novelty aspect of this story gets it noticed... Guantanamo greatest hits," he said.

"What we're talking about here is people in a darkened room, physically inhibited by handcuffs, bags over their heads and music blaring at them.

Leaving aside the legal niceties about whose law if any applies in that dreadful place, one can only wonder if ASCAP might not want a piece of the action. After all, it went after the Girl Guides not so long ago. And if it could try to make a buck off Girl Guides, who are nice people, why not alleged terrorists? Why should terrorists enjoy free music?

This has been picked up by:

Techdirt here on July 8, 2008.

And here by Wired here on July 8, 2008.

And in The Guardian on July 9, 2008 here.

And Cory Doctorow on BoingBoing here on July 11, 2008.

And Freakonomics in the New York Times today, July 16, 2008 here.

etc.

Very interesting...

There is definitely nothing funny about Guantanamo - but sometimes there are lessons to be learned in parody, satire and black comedy...perhaps even in Canada...

To be continued no doubt...

HK