So far, we haven't seen any reports indicating that the invoice has been paid. We can still use this interesting scenario to speculate on the legal basis for any claim that Skinny Puppy could make if these circumstances arose in Australia and payment were not forthcoming, and how likely they would be to succeed.
Copyright infringement
Based on the media reports, the legal basis for Skinny Puppy's claim seems to be that copyright in its music has been infringed on the basis that it has been performed in public without permission.
A lawyer interviewed by Billboard.biz pointed to a number of potential snags that the band may encounter in making such a claim in the US, including that the detention camp may be covered by a blanket licence (perhaps an equivalent to the licensing scheme run in Australia by the Australasian Performing Right Association), limitations on the availability of statutory damages and the fact that Guantanamo Bay is outside of the United States.
Assuming that each of these hurdles could be overcome, would the playing of a musical work to prisoners in a detention camp be a 'performance in public'?
In Australia, the test that is generally applied is whether the work is performed to 'the copyright owner's public' or, in other words, in a commercial context where the copyright owner could be expected to be paid a fee. Clearly, a prisoner would not be expected to pay to have music blasted loudly and repetitively at them. However, the fee need not necessarily be expected from a member of the audience and could be from another person willing to bear the cost of the performance. Further, even if Skinny Puppy's music was played to individual prisoners (rather than throughout the Guantanamo Bay centre), an audience of separate individuals can still make up the public: in previous cases, the playing of films to individual motel rooms and the playing of hold music over the telephone have both been found to be communications to 'the public'.
Skinny Puppy would therefore at least have an argument that it was entitled to expect that the US government would pay a fee to play music to prisoners for the government's purposes, and that accordingly the exclusive right to perform a work in public was infringed. However, the (presumably) small number of listeners and the private and restricted nature of a detention centre would be arguments against their case. It would be fascinating to see what a court would decide given the opportunity.
Moral rights
US law only grants moral rights to the creators of visual works. In Australia, however, moral rights exist in relation to all of the categories of works that are protected by copyright, including musical works. If a similar situation were to occur in Australia, would the members of Skinny Puppy be able to bring a claim for infringement of their moral rights?
In Australia, the right of integrity of authorship gives the author of a work the right not to have anything done in relation to the work that is 'prejudicial to [his or her] honour or reputation'. This expressly includes the doing of anything that results in a material distortion or mutilation of, or a material alteration to, the work. Where an artistic work is concerned, it also includes an exhibition in public of the work that is prejudicial to the author's honour or reputation because of the manner or place in which the exhibition occurs. There doesn't seem to us to be any reason why a similar treatment of a musical work (ie, the performance of the work in public in a manner prejudicial to the author's honour or reputation because of the place in which it is performed or the manner in which it is performed) could not amount to derogatory treatment. Such an infringement would also not necessarily be premised on there having been performance in public of the work (as this is not a pre-requisite for showing that there was derogatory treatment), and would not rely on Skinny Puppy needing to demonstrate infringement of copyright.
Was the playing of Skinny Puppy's work in this context prejudicial to the band members' honour or reputation? Perhaps – the band could argue that it draws a connection between their work and practices of the US government with which they disagree, and the implication that listening to their music could amount to torture is hardly flattering.
Making a claim against the state
The other interesting question raised by this scenario is the effect of the government being the alleged infringer. In the United States, the federal government generally enjoys sovereign immunity from being sued (once exception being where it has consented to waive that immunity).
In Australia, on the other hand, Crown immunity is more limited. Although there is a presumption that legislation does not bind the Crown, this presumption can be displaced if the parliament intended for the Crown to be bound, even if this is not stated expressly.
In the case of copyright, the Copyright Act makes it clear that the Crown is bound by the Act. However, the Crown is afforded special treatment, including ownership of works made under its direction or control, and the right to use copyright material for the services of the Crown. The latter entitles the Crown to obtain a licence to exercise copyright, on terms either agreed with the copyright owner or fixed by the Copyright Tribunal of Australia.
In this case, the Australian government would have a strong argument that it had a right to use music for the purposes of managing prisoners as this would be for the 'services of the Crown', even if this did amount to a public performance of the work. If it considered that it was in the public interest to do so, it could delay informing the copyright owner of this use, and would only have to pay the royalty determined by the Copyright Tribunal (assuming that it could not reach agreement with the copyright owner).
However, as Crown rights under the Copyright Act do not displace moral rights, Skinny Puppy (or its hypothetical Australian equivalent) could still have recourse to those provisions and seek additional damages on that basis.
It seems, therefore, that if your music is to be used by a government to interrogate prisoners, you will have a better chance of enforcing your legal rights if this is done by the Australian rather than the US government.
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