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Music The Courts

"Happy Birthday" Hits Sour Notes When It Comes To Song's Free Use 178

vivaoporto writes: NPR reports that "Happy Birthday to You", one of the most recognized songs in the English language, is the subject of a class action complaint over the validity of its copyright. The publisher Warner/Chappell Music owns the copyright to the "Happy Birthday" song and anyone who wants to use the song must pay a licensing fee. How did Warner/Chappell get the rights? "This is where it gets complicated," says Jennifer Nelson. She is working on a documentary about the song and paid for the rights to use it. Now she's suing Warner/Chappell to get her money back, arguing it's part of the public domain. "I think it's going to set a precedent for this song and other songs that may be claimed to be under copyright, which aren't," says Newman. The Courthouse News Service have more information about the pending suit.
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"Happy Birthday" Hits Sour Notes When It Comes To Song's Free Use

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  • by Krishnoid ( 984597 ) on Monday July 13, 2015 @06:25PM (#50102869) Journal
    1. Pay songwriter to compose alternative song
    2. Record song
    3. Release recording with a Creative Commons license
    4. Send postcards to every restaurant in the country, letting them know it's free to perform and encouraging them to sing it
    5. ?
    6. Profit!
    • "Release recording with a Creative Commons license" and "Send postcards to every restaurant in the country", then "Profit"?

      Not sure where the profit will come from. You just gave away the song, and spent a boat load of money sending all those postcards.
    • Re:A better solution (Score:4, Informative)

      by Daemonik ( 171801 ) on Monday July 13, 2015 @06:34PM (#50102935) Homepage
      ..the a large copyright aggregator like Rumblefish comes along, claims over and over again that they own the rights getting your accounts suspended while they rake off a profit from their own monetization of said music.
    • by sjames ( 1099 )

      And surrender another part of our culture to a soulless corporation.

    • As anyone who has climbed out of their parents' basement in the last 20 years knows, restaurants are using "happy happy birthday, happy happy birthday" sung to The Lone Ranger theme (or William Tell overture if you're being pedantic) for some years now. Life finds a way.

    • by Pfhorrest ( 545131 ) on Monday July 13, 2015 @07:08PM (#50103177) Homepage Journal

      There's already an alternate birthday song sun in every restaurant I've ever been to that had sang to people on their birthdays:

      Happy happy birthday
      From all of us to you!
      We wish it was our birthday
      So we could party too!

      I always like to sing along under by breath a little parody I made up on the very topic of this article:

      Happy happy birthday
      From all of us to you!
      We'd sing you "Happy Birthday"
      But then we would get sued!

    • Even better, use something like The Birthday Party Polka [youtube.com], which isn't copyrighted at all, and has been use since at least 1952, making it hard for anybody to claim the rights at this late date.
      • Even better, use something like The Birthday Party Polka, which isn't copyrighted at all, and has been use since at least 1952, making it hard for anybody to claim the rights at this late date.

        Considering that "Happy Birthday To You" (the song and lyrics) date back to 1912, if not earlier, don't assume it would be hard for someone to claim copyright on it.

        • You misunderstand. The song wasn't written in 1952, it was a prominent part of an Los Angeles TV show [wikipedia.org] that started in that year. Just about anybody who grew up there in those days knows the words, although they may not know the song's name. It's rather like asserting copyright over the tune of The Bear Went Over The Mountain, which can be traced back to the Crusades.
          • Re:A better solution (Score:5, Interesting)

            by Jason Levine ( 196982 ) on Tuesday July 14, 2015 @12:42AM (#50104729)

            And the Happy Birthday song's copyright is being asserted based on the fact that the piano arrangement was published in 1935 (IIRC) while the song itself is much older. So it still wouldn't surprise me if someone claimed copyright on a song because a TV show used it in 1952 despite the song being really old. Especially if that someone were a big company with enough legal resources to scare off any lawsuits challenging their claim.

            I wish Jennifer Nelson luck in fighting this battle. If she wins, I propose that every year, on her birthday, we all sing her Happy Birthday to commemorate the victory.

    • 35 cents times 616,008 restaurants in the USA = $215,602.80

    • When Warner really shouldn't own the copyright in the first place. The melody was written in 1893 and wouldn't be covered under any of the newer copyright extension laws. And the lyrics were in common use before someone tried to copyright those later.

    • Already done, decades ago:

      https://www.youtube.com/watch?... [youtube.com]

      The tune was written to avoid said copyright, and the writer (Mike Jittlov) allows anyone to use it royalty-free. I don't think it's been properly licensed as such, though, since CC didn't exist at the time.
      =Smidge=

    • A better solution is the solution proposed. This is EXACTLY the same situation as the SCO lawsuit where white collar criminals have taken a song they have nothing to do with. Warner has simply taken a song that has been in the public domain for years, hired a bunch of lawyers to find some way to make a claim to it, and then demand royalties. People don't want to hassle with the lawsuit, so they pay the ransom.

      This case should be another to go to the Supreme Court, and the rampant song theft needs to be s

      1. Pay songwriter to compose alternative song
      2. Record song
      3. Release recording with a Creative Commons license
      4. Send postcards to every restaurant in the country, letting them know it's free to perform and encouraging them to sing it
      5. ?
      6. Profit!

      Even better, everyone can modify it and add the updated lines to the song; so eventually you'll have gone from 4 basic lines to thousands of lines, so every possible need for a song is satisfied. Of course, some will want to fork it into the languages and others will fork it because the whole idea of singing a song dedicated to getting a year closer to death is absurd; but hay, it's free.

    • by _KiTA_ ( 241027 )

      1. Pay songwriter to compose alternative song
      2. Record song
      3. Release recording with a Creative Commons license
      4. Send postcards to every restaurant in the country, letting them know it's free to perform and encouraging them to sing it
      5. ?
      6. Profit!

      This only works if you're Glee. [forbes.com]

  • Music can easily become "classic" or "folk" in a century or so.

    it's not like your future great grandchildren are going to encourage you to make more music, so they can profit. Or in this case, future huge music conglomerates.

  • by DoofusOfDeath ( 636671 ) on Monday July 13, 2015 @06:32PM (#50102913)

    Warner wouldn't steal a car, would they?

  • Ever notice they don't sing happy birthday in Futurama? "What day is today? It's Bender's birthday! And you smell like one, too!"

    • I thought it was:
      "What day is today? It's Bender's birthday! What a day for a birthday. Let's all have some cake!"

  • The melody is surely public domain based on Good Morning to All and putting new lyrics on it doesn't change that. That's why the rights reverted to the authors of Good Morning to All. You can't have it both ways. Haha, just kidding, a corporation wants it both ways, so the government will be happy to bend over for them. Still, if you want alternatives: http://mycloudplayers.com/?id=... [mycloudplayers.com] http://users.aei.ca/robr/Birth... [users.aei.ca] http://users.aei.ca/robr/Birth... [users.aei.ca] http://users.aei.ca/robr/Happy... [users.aei.ca]
  • Happy birthday to you

    Happy birthday to you

    Happy birthday Mr President

    Happy birthday to you

    Thanks, Mr President

    For all the things you've done

    The battles that you've won

    The way you deal with U.S. Steel

    And our problems by the ton

    We thank you so much

    Everybody, happy birthday

  • by michaelmalak ( 91262 ) <michael@michaelmalak.com> on Monday July 13, 2015 @07:11PM (#50103185) Homepage

    FTFA:

    later, sometime in the '20s, the 'Happy Birthday to You' lyrics were added to the melody, and Summy copyrighted that.

    If "sometime in '20s" was 1929, then this copyright calculator [publicdomainsherpa.com] says Jan. 1, 2025.

    • FTFA:

      later, sometime in the '20s, the 'Happy Birthday to You' lyrics were added to the melody, and Summy copyrighted that.

      If "sometime in '20s" was 1929, then this copyright calculator [publicdomainsherpa.com] says Jan. 1, 2025.

      Also FTFA:

      [Warner/Chappell] says the copyright that counts is one obtained in 1935, for arrangements of the song. If that's true, "Happy Birthday to You" will eventually go into the public domain — but not for 15 more years, in 2030.

  • $commentSubject (Score:4, Insightful)

    by Falos ( 2905315 ) on Monday July 13, 2015 @07:23PM (#50103243)

    >How did Warner/Chappell get the rights?

    They called dibs. C'mon, even children know how imaginary property works.

    • by penix1 ( 722987 )

      So I see you heard of the dibs protocol and the no take backs accord as well. (Gotten from Red Vs. Blue)...

  • Make the copyright only go to the person in 13 year periods, renewable for their life, and with one extension if they have a spouse or children that survive them.

    Only allow corporations to rent part of a 13 year period. Forcing them to renegotiate with the living human for each cycle.

    Make it so!

    • by PRMan ( 959735 )
      And add an order of magnitude for each renewal. Song's not worth $1,000,000 to you? Guess it's in the public domain then.
    • by currently_awake ( 1248758 ) on Monday July 13, 2015 @07:58PM (#50103485)
      Make copyright automatic from publication, with a term of 7 years. If they register it and pay yearly property taxes then they can keep it for 14 more. And that's it, no more extensions.
      • by penix1 ( 722987 )

        OK... I'm going to play Devil's advocate here and ask you a couple questions...

        Assume they do just as you say. What do you do with those that violate even that copyright term? You see, today things are copied usually the day they are released or in most cases even before they are released. Just how do you stop that? If you really intend to be fair, until you can answer those you are just blowing smoke.

        • by flopsquad ( 3518045 ) on Monday July 13, 2015 @10:44PM (#50104333)
          Returning copyright terms to a reasonable length is about fairness to society. It has nothing to do with fairness to content creators or preventing infringement.

          We the people grant a limited monopoly on creative expression in order to promote more creative expression (paraphrasing Article I, Section 8, Clause 8).

          Among the arguments in favor of this monopoly right, "fairness" (i.e. I should control how this gets used because I worked hard to make it) is perhaps the least compelling.
      • yearly renewal with exponential growth for as long as it is worth it to renew. If a company finds a single song worth billions in tax payment then it's a win for both the company as they've found some great way to profit off it and society as they git a huge drop in the tax bucket.

  • by thogard ( 43403 ) on Monday July 13, 2015 @07:45PM (#50103391) Homepage

    Long ago on usenet, someone who seemed to be against the long term copyright extensions was asking people to send in video of politicians singing happy birthday in public. I don't remember the specifics and I suspected it might have been a lobist or someone working for the rights holder.

    I still think it would be cool for someone like the EFF to start collecting this so the next time Disney wants another 20 years, they can come out and list a whole bunch of pirates that are in congress.

  • by Dereck1701 ( 1922824 ) on Monday July 13, 2015 @07:46PM (#50103407)

    "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

    Key words spelled out right in the constitution at least here in the US are "Authors and Inventors" and "limited Times", both of which appear to be FAR beyond the veil here. The artists have been dead since 1946 and no one with their head screwed on straight wound consider over a hundred and twenty years to be a "limited time" especially when you take into account that at the time the constitution was written you considered yourself lucky if you lived into your 40s.

    • The artists have been dead since 1946 and no one with their head screwed on straight wound consider over a hundred and twenty years to be a "limited time" especially when you take into account that at the time the constitution was written you considered yourself lucky if you lived into your 40s.

      Well, lawyers have successfully argued in court that it does constitute a "limited time" since it is not infinitely long. Oh wait, I think I just made your point for you!

      • It's my understanding that in common law anything less than 100 years is considered finite, 100 years is unlimited.
    • Key words spelled out right in the constitution at least here in the US are "Authors and Inventors" and "limited Times", both of which appear to be FAR beyond the veil here.

      "Limited" means nothing until the terms are fixed in legislation. It demands a judgment call, a policy decision, a political decision.

    • by tao ( 10867 )

      Also, the intention is clearly to to benefit the Authors and Inventors. NOT publishers. NOT performers. NOT record companies. NOT patent trolls. NOT descendants of the original Author/Inventor.

  • by SoftwareArtist ( 1472499 ) on Monday July 13, 2015 @07:47PM (#50103409)

    This article isn't very accurate. The real story make the copyright claims even more absurd. See https://en.wikipedia.org/wiki/... [wikipedia.org]. The melody and general idea of the lyrics date back at least to the mid-1800s. The song "Good Morning to All" was published in a song book in 1893, but the authors of that book had been singing it with their kindergarten class for many years, and it's not clear they were the original authors of it. The same melody with the words "Happy Birthday to You" was, it appears, an innovation of children who had been in their class, who started singing it at birthday parties. The tradition spread, and it appeared in print at least as early as 1912.

    So what do they actually have a copyright on? Well, a piano arrangement was published in 1935. And years later someone came across that piano arrangement, found that a copyright had been registered on it, and (presumably being ignorant of the actual history of the song), thought they owned a copyright on the song and started trying to enforce it.

    • And no one really uses that piano arrangement (my guess), so almost none of the enforcement should ever have been valid.

      • And no one really uses that piano arrangement (my guess), so almost none of the enforcement should ever have been valid.

        But the problem is that U.S. court precedent has mostly considered the idea that melody is the primary determinant of copyright. For better or for worse, that's generally the standard. Now, whether this particular arrangement is the earliest to contain proper notice and copyright registration, as well as a properly filed renewal (as was required during that period)... well these are all interesting questions.

        The claim to copyright today is completely bogus. But the specific piano arrangement is legally

    • by jdavidb ( 449077 )

      And years later someone came across that piano arrangement, found that a copyright had been registered on it, and (presumably being ignorant of the actual history of the song), thought they owned a copyright on the song and started trying to enforce it.

      When it comes to copyright, never attribute to ignorance that which can be adequately explained by malice. They always try to enforce the rights further than they know they are entitled to.

  • The mouse goes public domain in 2024. I'm sure this will be fixed soon.

  • Scène à faire (Score:2, Informative)

    by Anonymous Coward

    The copyright should be unenforceable against a TV show or restaurant that uses the song during a birthday celebration. The doctrine is called "Scène à faire", that which must be done. In the United States, this song is almost always sung at a birthday and if it wasn't sung, you'd have to explain why. This is a case where copyright cannot apply because the song has to be sung. See https://en.wikipedia.org/wiki/Sc%C3%A8nes_%C3%A0_faire

  • Witness the greed of people who expect to be paid perpetually for something they may or may not have created years ago. I'll bet anyone would take that action if they could. "Hey, man, I made what you called an awesome cheeseburger last year. You owe me royalties." Oh, wait, that does sound stupid.

This restaurant was advertising breakfast any time. So I ordered french toast in the renaissance. - Steven Wright, comedian

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