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Imagine you’re in charge of promoting your community’s 4th of July parade this weekend, and are making a video to spread the word. Naturally you’re looking for patriotic music. You know that Stars and Stripes Forever is old enough to be in the public domain, so all you need is a performance of the song also in the public domain. Fortunately, you’re pretty sure recordings produced by US government bands are in the public domain. But when you visit the US Marine Band’s website, you are greeted by the following:
“Free Educational Recordings. 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.” (Emphasis added.)
This reads as though Marine Band is placing usage restrictions on their recordings, scaring people away from use. But these recordings, like White House photos and videos of Congressional hearings, aren’t protected by copyright. Are these usage restrictions for real, then?
Section 105 of the Copyright Act explicitly states: “Copyright protection under this title is not available for any work of the United States Government.” The Marine Band is part of the United States Government, which means that its works are not eligible for copyright protection. That puts the recordings in the public domain. No usage restrictions can be placed on public domain materials for any reason, period, full stop.
Public Knowledge contacted the Marine Band last week, asking for clarification; they indicated the restriction only applies to their free CD mailing program. While the website language may have been clear before audio was easily distributed online, today it is confusing at best. After all, if you go to the Marine Band website right now, the recordings are being distributed to you free of charge. Your status as an educational institution, a public library, or a radio station isn’t verified before clicking “Download.”
Inadvertent language is no excuse for misleading readers. The stakes for any portion of the US government issuing chilling statements around copyright are high – especially when the US government as a whole has a shaky record on misusing copyright in recent history, these sort of statements damage free speech and the public domain alike. Fortunately, this problem is easily solved. A quick revision of the website could make it clear that the recordings are in the public domain and available to all, but in order to get a free CD you need to be a educational institution, public library, or radio station.
Bonus: how does Section 105 work?
Section 105 of the 1976 Copyright Act explicitly states that copyright is not available for any work of the United States Government. Was a work prepared by an officer or an employee of the United States as part of their job? If so, it enters the public domain upon creation – do not pass go, do not collect $200 and wait for seventy years after the author passes away, do not discuss fair use (which only applies to copyrighted works).
Copyright holders have exclusive rights over reproduction of the work (making copies), making derivative works, distribution (like posting it on the internet), and public performance and display. Consider the kind of works the US government creates. But for Section 105, imagine what types of works would be protected by copyright:
- Court decisions would absolutely count as literary works of sufficient originality to qualify for copyright protection (famously, it took the Supreme Court to decide that an alphabetical phone book didn’t).
- Photos of the President would be protected as well.
- If we stretch and apply modern law to a historical context, the Gettysburg Address wouldn’t have entered the Public Domain until 1925...also known as “after World War I ended.”
Government works enter the public domain immediately upon creation because they hold such high significance. Created by the government we elect, with the tax dollars we pay, these works define our laws, demonstrate on our history as a nation, shape our identity as a people, and serve as cornerstones of our culture. We shouldn’t need permission from anyone just to use them.
What’s the fuss?
Why does this matter? The White House’s photos are still online; the Marine Band’s recordings are still downloadable; the Earth still spins.
It shouldn’t take contacting the Marine Band – or sending a Freedom of Information Act (FOIA) request to the White House – to determine what is and what isn’t in the public domain. The public domain shouldn’t be limited to lawyers who’ve read the Copyright Act – and the US government shouldn’t artificially chill citizens’ use of public domain materials with misleading statements.
Full disclosure: as a former music major-turned-law student, this matters deeply to me. The Marine Band and its sister-ensembles in the armed forces represent some of the top musical talent our country has to offer. Where else can you hear the same group play the same Sousa march over 100 years apart as part of a proud tradition? Groups like The President’s Own Marine Band or the Air Force’s Airmen of Note are national treasures – their works can, and should, inspire feelings of pride and patriotism. When misleading statements about copyright law prevent widespread access to the public domain works these groups create, we are all the lesser for it.
Now if you’ll excuse me, I’m going to go and listen to something awesome.
Image credit: MSgt Kristin duBois