Music videos as victim impact evidence

SCOTUSblog has a preview of a death penalty petition raising a fascinating issue about victim impact statements. The defendant was convicted of killing Sarah Weir; at the sentencing stage, the prosecution introduced a video of Weir as part of the victim impact evidence. “Prepared and narrated by the victim’s adoptive mother, the film contained roughly ninety photos of the victim from infancy through high school graduation. Interspersed among the photos were a dozen video clips, some lasting a few minutes, showing the victim engaged in various childhood activities, such as playing with friends in a pool, readying her Halloween costume, and singing in a school choral group. In the background plays music by Enya – one of the victim’s favorite artists – an Irish musician known for layering recordings of her singing in different languages.”

SCOTUSblog is also hosting the video itself.

Though the death penalty issue is obviously more weighty, I think it’s actually entwined with the copyright issue. The video used the Enya song to make the narrative of the victim’s life more powerful. As SCOTUSblog notes:

The petition also contends the inclusion of background music serves no purpose beyond heightening the emotional experience of the viewer. Kelly’s attorney cites a 1940 essay in the New York Times in which composer Aaron Copland discussed his score for the movie, Of Mice and Men. “The quickest way to a person’s brain is through his eye,” Copland wrote, “but even in the movies the quickest way to his heart and feelings is still through the ear.” The petition argues that just as background music could not be played during in-court testimony, nor should it be allowed to accompany evidence on videotape.

Prior cases about copying in the service of court cases concerned materials more towards the heart of the case—a manuscript about the conduct of one of the parties to the case, for example, or allegedly infringed webpages, or the videotape in Scott v. Harris. Enya’s music, in itself, was not evidence. Was the use of Enya’s music to make an argument, in this case an emotional argument, fair use? If Copland was correct, as I think he was, then music is a different way of making a claim than narration or other rhetorical moves; using music to make an argument is different than using music for its standard entertainment value. Thus, I would deem the original in-court use a noncommercial, transformative one.

Regardless of whether the original was fair use, it seems to me indisputable that SCOTUSblog’s re-use is fair use. Having actually been considered by the jury in this case, the video is now at the heart of the legal issue. And the legal issue turns on whether the editing techniques and music employed in the video are too likely to have an improper emotional effect on the jury. (One can argue that emotion is perfectly proper in death penalty determinations, but even so, debate over how emotions can constitutionally be evoked is appropriate.) Examples of how music is actually used in victim impact statements allow citizens to assess the merits of the argument. Whether judges should rely on their own evaluations of the video is a separate issue—on this, see Kahan et al., discussed here—which is complicated because the question is not how the video makes a reasonable jury see the victim, but whether the rhetorical power of the video comes from impermissible sources. But informed public debate over the case will be vastly improved by access to the video, and therefore its use is fair use.