Is John Ashcroft's singing of this song copyrighted?

November 11, 2004 1:18 PM

Is John Ashcroft's singing of "Let the Eagle Soar" a copyrighted recording, or does him (formerly) being a gov't official doing it at some strange gov't event in public make it public domain?

The most info I could find about it was this:

U.S. Attorney General John Ashcroft ended a speech at a Charlotte, North Carolina seminary with a rousing rendition of a song he wrote called 'Let The Eagles Soar'

I know he wrote it and owns the (c) on the lyrics, but I'm wondering if samples from a public conference, in the public domain, could be used as a sample in a commercial song.

posted by mathowie to law & government (12 answers total)

It's not public domain simply because he is a government official (and he still is) 17 USC 101: A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.

It's much harder to figure out whether your use is actually fair use or not. This four-factor test is very helpful. I'd have to know more about what you intend to do with it, but the fact that you want to use it commercially doesn't help you.

IANAL.
posted by grouse at 1:29 PM on November 11, 2004

I'm a little rusty on my copyright law, but no, it has never been 'fixed' anywhere to a phonograph record, so there is no (p) copyright. You will have to contact Ashcroft's publisher for (c) rights for a derivative work, regardless of his public office position.
posted by remlapm at 1:31 PM on November 11, 2004

Matt, you'd think that you, of all people, would know the answer to this sort of thing, given where you work. :-)
posted by Asparagirl at 1:50 PM on November 11, 2004

Didn't he used to make employees at the DoJ sing it as well? I think if you record the Attorney General in a hallway making an ass of himself, you get to keep it. IANAL, but I'd pay good money to have a front row seat at that legal proceeding.
posted by jessamyn at 2:13 PM on November 11, 2004

Well, the composition was written by him and two other people and is 2/3 controlled by Warner Chappell. Therefore, regardless of the sound recording you will need the publishers' permissions to use the song. The composition is by no means a work of the federal government.

Notwithstanding the underlying musical composition, the question of the recording is very interesting. To arrive at a good answer would take some detailed research. When was a recording of the song first fixed, etc?
posted by anathema at 2:31 PM on November 11, 2004

Well Asparagirl, I did just make a post about the difficulty in determining copyright of gov works yesterday. Listen to the NPR feed, it sounds like if you record something yourself at a gov't event, then it is in the public domain. But if CNN records it, it's not.
posted by mathowie at 2:40 PM on November 11, 2004

Unless your proposed use actually involves burning CDs and selling them, I have to say that John Ashcroft is one of the least likely people in the world to sue. The potential bad publicity he'd get so much outweighs the value to him of suppressing the use that he's pretty likely to underenforce his copyright. The tactical key is to make a use that you could claim to be a fair use in good faith--something with obvious elements of parody or a strong political point. Fair use means the right to hire a lawyer, but two can play at that game--if you defend on a plausible fair use claim, he can't win easily. You might at least be able to force discovery.

Of course, this would be a ruinous strategy for most people, and were I a lawyer for anyone considering it, I'd probably have to warn against it as being very risky and possibly extremely expensive, but as long as "Let the Eagle Soar" stays fairly samizdat, the fair use grey area is, oddly, probably safer than it would be for most other songs one might use.
posted by grimmelm at 3:47 PM on November 11, 2004

there's a fantastic and terrifying remix of let the eagle soar by canadian sound artist mitchell akiyama available on the wonderful 60 sound artists protest the war compilation, available here. i doubt that he asked for permission first.
posted by nylon at 4:46 PM on November 11, 2004

If the song were self-published I would consider your proposition, grimmelm. But in fact, it is Warner Chappell (which is the largest, or at least one of the largest, music publishers on the planet) who publishes and administers 2/3 of the rights. They are the ones to worry about. John Ashcroft personally has very little to do with this issue. Always look to the rights holder, not necessarily the author of the work. As far as fair use is concerned, that's an expensive rack to hang a hat on. This isn't legal advice, of course.
posted by anathema at 6:30 PM on November 11, 2004

Anathema: yes, good point -- the name of the game becomes signalling to W-C that they should sink their resources into suing filesharers and stealing little old ladies' purses instead.

This isn't legal advice, either, but were I to make widespread public use of "Let the Eagle Soar," I might let it be known in advance that if I got hit with a C&D or any legal action, I'd do everything I could to tie up Ashcroft, including filing any counterclaims I could plausibly make against him and deposing the hell out of him (about the occasions on which he'd performed the song, about its political message, etc. etc.) on the reasoning that he might lean a bit on W-C not to be so slap-happy with the lawsuits.

Yes, it would be a very expensive rack; this strikes me as one of those cases in which it's better to signal up front that you're not economically rational and would fight the lawsuit ridiculously. You want them to think that you're a JibJab rather than a DJ Danger Mouse. But if you were going to go that route, you'd probably want to line up your pro bono counsel in advance . . . which means that yes, no sensible person would really want to go that route.
posted by grimmelm at 7:38 PM on November 11, 2004

The recording is the interesting issue here.
posted by anathema at 3:54 AM on November 12, 2004

grimmelm, it seems to me that relying on someone's fear of bad publicity in order to play fast and loose with fiddling their copyright is the flip side of the bad penny of doing the same, relying on the copyright holder's lack of financial means to get a lawyer who could fight you. Either way, there's an inability on the part of the aggrieved party to seek proper redress, and you're capitalizing upon it to do them harm.

If it's okay for Matt to do what you've suggested to John Ashcroft for Matt's own purposes, why wouldn't it be okay for Nameless Faceless Big Corporation to gank someone's recording of a song by unknown songwriter/brokeass gas station attendant John Smith to use for their own purposes?
posted by Dreama at 4:58 AM on November 12, 2004