I recently wrote about the two year FBI investigation into the song Louie Louie. Read it here. The short version, some blueballed fuckhead agents and uptight feminists lost their shit at the thought that Louie Louie might be corrupting our youth.
The FBI had its theories as to what the “dirty words” were. But, they were totally wrong. Here is what the cops and the feminists thought the lyrics were:
The UK-based “virtual band” Flirt With Danger decided to release its own version of Louie Louie, not using the original lyrics, but using the lyrics that the FBI and the Junior Anti-Sex League thought the lyrics were. (source)
Gotta love that.
So who owns the copyright to those lyrics?
Inside the United States, they would be public domain. 17 U.S.C. § 105 states:
Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
17 U.S.C. § 101 defines a government work as follows:
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. (source)
I would say that the faux lyrics to Louie Louie were prepared by an FBI agent as part of his official duties. That would mean that Flirt With Danger might be flirting with some kind of danger, but not the danger of a copyright infringement suit.
Well, wait a sec though…
What if the U.S. Government wants to enforce the copyright to its “work” outside the United States? It could do that. The U.S. Government work exception only applies in the United States. See S. REP. NO. 473, 94th Cong., 2d Sess. 56 (1976)). House Report No. 94-1476, p.59 (“The prohibition on copyright protection for United States Government works is not intended to have any effect on protection of these works abroad. Works of the governments of most other countries are copyrighted. There are no valid policy reasons for denying such protection to United States Government works in foreign countries, or for precluding the Government from making licenses for the use of its works abroad.”).
Therefore, the Government could assert its right to the incorrect lyrics to Louie Louie outside the USA. Flirt With Danger is a UK-based band. Do they have a problem?
Well, for starters, the FBI would have to seek to enforce its copyright against Flirt With Danger, which would be a pretty stupid public relations move. But, lets say they tried. The “US Government Works” prohibition would not be a an impediment to their infringement claims in the UK.
So now what? Lets say the FBI was that stupid.
Aha! What about authorship? Is the FBI really the “author?” Wouldn’t the “author” be the person who called the FBI and reported those to be the actual lyrics? Wouldn’t the lyrics have sprung from the dirty-mind of Mrs. Complainy-Pants?
Perhaps. But then, Mrs. Complainy-Pants would need to try and enforce her copyright in the lyrics. But, then again, you don’t have copyright until your work is in a “fixed tangible medium.”
A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
So, Mrs. Complainy-Pants only had the lyrics in her mind. The FBI agent “fixed them.” But, did he really? Did he write exactly what she said? What if the wrong lyrics didn’t come from Mrs. Complainy-Pants, but rather from some kid at her daughter’s school? Wouldn’t he be the author?
The real story is likely lost to history – as is any claim of authorship. To the extent that any claim of authorship could ever be extracted from the jumbled mess of history, I think that our friends at Flirt With Danger are in little to no danger of a copyright infringement claim.
Me gotta go….