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Music The Courts Your Rights Online

"Happy Birthday" Public Domain After All? 183

New submitter jazzdude00021 writes: No song has had as contentious of copyright history as "Happy Birthday." The song is nearly ubiquitous at birthday parties in the USA, and even has several translations with the same tune. Due to copyrights held by Warner Music, public performances have historically commanded royalty fees. However, a new lawsuit has been brought to prove that "Happy Birthday" is, and always has been, in the public domain.The discovery phase for this lawsuit ended on July, 11 2014, yet this past week new evidence surfaced from Warner Music that may substantiate the claim that the lyrics were in the public domain long before the copyright laws changed in 1927.
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"Happy Birthday" Public Domain After All?

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  • by The New Guy 2.0 ( 3497907 ) on Saturday August 01, 2015 @10:48AM (#50229325)

    Disney defends "Steamboat Willie" from about the same time frame to protect Mickey Mouse from falling into the public domain. "Happy Birthday" is from about the same time. This era is kept out of the public domain by repeated copyright law changes, the most recent being the DMCA which extended the time works stay copyrighted.

    • Re: (Score:2, Insightful)

      by jones_supa ( 887896 )
      Disney invented Mickey and still actively uses the character in the company's productions. It's fair that Disney retains copyright to Mickey Mouse.
      • by Anonymous Coward on Saturday August 01, 2015 @11:00AM (#50229377)

        That's a trademark, the copyright is in the cartoon 'steamboat willy', which should be copyable and would not stop Disney from holding the trademark.

        • by cpt kangarooski ( 3773 ) on Saturday August 01, 2015 @06:43PM (#50231175) Homepage

          Well, it's a little more complicated than that.

          The sine qua non of a trademark is that all goods with the same mark originate from the same source. If this is true, the mark can be protected. If not, the mark cannot be protected. This is why trademark holders are always concerned with infringers; if the infringer is not stopped, there will be identically marked goods originating from different sources, and the protected status of the mark is jeopardized and can be lost.

          Trademarks and copyrights only sometimes overlap with regard to the subject matter that they protect (e.g. a very artistic trademark could be protected by copyright as a work of art; a mere word used as a trademark could not be copyrighted, however). However, copyright is considered the superior right; a trademark is not allowed to function as a substitute for a copyright, nor to interfere with copyright policy.

          This means that if the trademark is a character from a creative work, and the work is in the public domain, copyright law allows everyone to make copies and use the work and thus the character from the work, as they see fit. Trademark rights in the character can't interfere with this, so to the extent that there is a conflict, the trademark loses.

          So the MICKEY MOUSE trademark might survive with regard to products unrelated to creative works, like those ice cream bars that looked like a Mickey Mouse head. But it would not survive with regard to movies, books, comics, television shows, etc. And I wouldn't want to bet money on whether it would survive with regard to things like t-shirts or hats that might feature Mickey Mouse in an ornamental capacity, rather than as a trademark. So a lot of the merchandising gravy train would derail.

      • by Anonymous Coward on Saturday August 01, 2015 @11:07AM (#50229405)

        Whether or not a copyright is used is irrelevant. You're thinking trademarks where they are granted for the context permanently as long as they remain used and defended.

        Copyrights are explicitly intended to be for a limited time and for most of American history that limited time was well within the lifespan of an average person. Until relatively recently the only way to obtain a copyright was to explicitly submit the material to the Library of Congress for certification at which point you were granted a 14 year exclusive use. You could apply for an additional 14 year grant but after 28 years the material would be forced to fall into the Public Domain and permanently accessible from the Library of Congress. You had those maximum of 28 years to make as much return on your investment as possible, but you were expected to then reinvest that return into new ventures. It was never intended that an entity could squat on the material indefinitely regardless of whether they continued to make money on it as much of the purpose was to incentivize the creation of new material through the very loss of that monopoly.

        The current form of copyright in the US is a perversion of that intention. Aside from the near indefinite monopoly status due to extensions granted to the Disney lobby there is also no requirement to submit the material to an archive. Works are simultaneously locked up permanently as well as lost forever. As with Disney an entity can create one work and rest on their laurels effectively eternally and never have to invest in new art forms. What's worse is that because of Disney everything else not explicitly put into the Public Domain is just as lost, regardless of whether or not anyone is still actively creating new works with it.

        • by Opportunist ( 166417 ) on Saturday August 01, 2015 @11:57AM (#50229605)

          And that's exactly where the current form of copyright not only fails to address its original purpose but actually works against its purpose.

          The purpose was to give people an incentive to create works of art by giving them an monetary incentive to do so. If you can monopolize something great for a time (instead of fearing that whatever you create immediately being copied by anyone, rendering your work worthless), you have an incentive to create something great and reap the rewards of your work. That's fine.

          Now, last thing I heard about "happy birthday" was that it makes 5 grand a DAY for Warner. Now, imagine you made "happy birthday". And got 5 grand a day from it. Where the fuck is your incentive to EVER create anything again? 5 grand a day? Fuck, I couldn't be assed to do anything but sit there and rake in the money for the rest of my life. Why bother work ever again if you already get more money than you can sensibly spend without doing anything?

          • Exactly. There needs to be 'cultural ubiquity' limits like with trademarks. Happy Birthday is a cultural artifact and its copyright should be rescinded due to ubiquity and cultural importance. At least that is a system i would like to see put in place.
        • Re: (Score:2, Interesting)

          by paiute ( 550198 )
          Copyright should be renewable forever upon payment of a fee every ten years or so. If a property is so valuable that it generates income, fine. Keep paying the fee and keep the property. If nobody is making money from it and nobody can be bothered to make the payment, then the property falls into the public domain.
          • No. Any mechanism by which copyrights can be maintained forever will be abused. The DisneyCorps of the world will just automate the system to the point that long after human life is extinct, their computers will continue renewing copyright and submitting payments.

            Why? Because if they ever let copyright lapse, even on property they doubt will ever make another dime, somebody else might make a profit off that work, and that would be money the copyright holders would feel they lost due to negligence.

            How about

          • There is no legal or moral REASON to grant perpetual copyright. The original point of copyright is to enrich the public more than the artist. The Public's interest is supposed dominant here. Granting perpetual copyright to ideas is very bad.
          • Copyright should be renewable forever upon payment of a fee every ten years or so. If a property is so valuable that it generates income, fine. Keep paying the fee and keep the property.

            NO. The whole point of copyright was to encourage writers and publishers and artists to invest time in making a good product. It originated because publishers who tried to print a book had to invest a lot of money in things like manual typesetting and proofreading -- but the better-known publisher down the street could just buy the first copy, recreate it (cheaper, with more errors, but good enough), and make all the money (because they make it on the cheap), while the first (lesser-known) publisher goes

            • The whole point of copyright was to encourage writers and publishers and artists to invest time in making a good product.

              No, the whole point of copyright was to promote the progress of science (which is an archaic term for knowledge) and to thus serve the public interest.

              Half of that involves encouraging authors to create and publish works which they would not have created and published but for copyright. But the other half is to grant the least amount of protection, for the least amount of time, that is necessary to accomplish that.

              And the success of any copyright law is measured in how much of a benefit it provides for the

        • Until relatively recently the only way to obtain a copyright was to explicitly submit the material to the Library of Congress for certification at which point you were granted a 14 year exclusive use. You could apply for an additional 14 year grant but after 28 years the material would be forced to fall into the Public Domain and permanently accessible from the Library of Congress. You had those maximum of 28 years to make as much return on your investment as possible, but you were expected to then reinvest that return into new ventures.

          "Relatively recently?" What are you, a highlander?

          The 14+14 term you describe lasted from 1790 to 1831. Then it became 28+14. And in 1909, it became 28+28. That's the term that changed relatively recently, in 1978, to life + 70, etc.

          Still, kudos on the general thrust of your argument.

      • by coats ( 1068 ) on Saturday August 01, 2015 @12:10PM (#50229643) Homepage
        It is not fair.

        Neither is it fair that Disney stole Osamu Tezuka's Kimba for use in The Lion King.

        The Constitutional requirement is: (1) to authors and inventors, (2) for a limited time, (3) in order to promote progress in the sciences and arts.

        It is impossible that extending the copyright term for works of a fifty-year-dead author can encourage him to produce more work. Nor is the resulting term "limited" in either in mathematical or human terms. And the current Mickey Mouse "copyright owners" are certainly NOT that author nor inventor.

        • Extending it won't encourage the dead author to produce more work, but it can (theoretically) encourage people who are alive now to create works they wouldn't otherwise have done because they'll be able to better provide for their descendants.
          • Extending it won't encourage the dead author to produce more work, but it can (theoretically) encourage people who are alive now to create works they wouldn't otherwise have done because they'll be able to better provide for their descendants.

            Are the laws designed to fulfill this theoretical justification? Do they say that copyrights are extended for extremely long terms on the condition that the copyright remain with descendants, and pays them revenue?

            No, they do not. If a corporation acquires a copyright then they receive any revenue, not descendants who may exist. Laws must be designed to fulfill the purpose that is used to justify them, otherwise you are just pulling arguments out of a hat.

          • by The Rizz ( 1319 )

            Extending it won't encourage the dead author to produce more work, but it can (theoretically) encourage people who are alive now to create works they wouldn't otherwise have done because they'll be able to better provide for their descendants.

            Actually, the long copyrights actually discourage the creation of new works, as those who are living today cannot use these characters or stories as building blocks for new stories. Also, the long copyrights don't realistically provide for their descendants - you've got a better chance of winning the lottery than having a work give real value after 30 years.

            The truly ironic part of this is that Walt Disney became famous and made his empire by building upon stories that were in the public domain - Snow White

    • The laws are all screwed up and perverted by corporate interests.

      The fair thing is for copyrights to only last 14 years, maybe with a single extension to a total of 28 years, based on some specific criteria like popularity and cultural significance.

      Trademarks are the domain where Disney could protect its characters like Mickey Mouse from exploitation by others... Trademarking Mickey Mouse means nobody else can use that character to make a profit, while holding the copyright to a certain amount of time elimi

      • maybe with a single extension to a total of 28 years

        With a renewal fee of 10% of the 1st years gross income. If the property is valuable enough to renew, let 'em pay for the privilege.

    • Uh, not quite the same era. "Steamboat Willie" was 1927, but "The Birthday Song" was originally penned by [attributed to] Patty and Mildred J Hill in 1893.

      Disney has always renewed copyrights, but only so many can be granted. Hence, the Sonny Bono Copyright Act.

      Birthday song is different [I'll try to summarize the legal brief found in the article]:

      - In 1922, "The Cable Company" published the "The Everyday Songbook". It had "Good Morning and Birthday Song" [aka "Happy Birthday"] in it, with "Special permission through courtesy of Clayton F Summy Co." under the title. Note that the song above it on the page had a copyright notice.

      - Modern copyright law is different than it was in 1922, which was governed by the Copyright Act of 1909. Under this act, a work must have an explicit "Copyright", "(C)", or "Copr." in it.

      - Under the 1909 act, if a compilation of various works is published, and a work does not have an explicit copyright, the original author loses their copyright to that work.

      - The "special permission" probably means that the work was already in the public domain.

      - Even if the "special permission" notice could be construed as a copyright, it would have to be renewed in 25 years [the copyright term in those days]. Thus, copyright would have to be renewed no later than 1949, either by Summy or Cable. Neither of them did so.

      - Even if Summy and/or Cable had renewed in 1949, the work would still have become public domain in 1997.

      Warner/Chappell's response is that the 1922 songbook was an "unauthorized" and/or "piratical" copy. See http://arstechnica.com/tech-po... [arstechnica.com]

    • Steamboat Willy is approximately 50 years more recent than "Happy Birthday". The song Happy Birthday was first published in 1912, but the evidence suggests that it had been around since sometime in the 1880s, or earlier. The "copyright" on the song is based on its publication in 1935, yet that publication was a copy of what was published in 1912.
  • by Dunbal ( 464142 ) * on Saturday August 01, 2015 @10:48AM (#50229331)
    I'm guessing Time Warner is going to be giving all those royalties back?
    • Even Time Warner programs like CNN NewsRoom shy away from singing Happy Birthday...

    • by nbauman ( 624611 ) on Saturday August 01, 2015 @12:41PM (#50229735) Homepage Journal

      I'm guessing Time Warner is going to be giving all those royalties back?

      That's what Good Morning to You Productions is demanding in the lawsuit.

      When one of the parties commits fraud upon the court, which is what it looks like they did in the discovery or non-discovery of that 1927 songbook, https://www.techdirt.com/artic... [techdirt.com] judges can get very angry.

      They've been knowingly demanding and collecting all that money under false pretenses. That's a little worse than downloading a few mp3s.

      The judicial system is so arbitrary and corrupt that anything could happen. But sometimes, once in a while, it actually produces justice.

      • I'm guessing Time Warner is going to be giving all those royalties back?

        That's what Good Morning to You Productions is demanding in the lawsuit.

        I know this would never happen, but the damages here should have to go further than just returning the money. How many movies and TV shows over the years have been forced to not film a birthday scene to avoid royalties? How many people have been deprived of the standard birthday song at a restaurant or other public celebration, because the staff was not licensed for public performance?

        Birthdays are important events. Movies and films often have scenes that want to show such events. Time Warner has deli

    • by pubwvj ( 1045960 )

      Due to aerodynamic issues and bone density pigs can not fly. I know as I have been breeding thousands of pigs for over a decade. Despite our best efforts we have not been able to achieve unpowered pig flight. The few pigs we have gotten to fly required launching with a catapult and that just isn't practical for most small scale pig airports.

  • by Anonymous Coward on Saturday August 01, 2015 @10:55AM (#50229361)

    That's the probem with copyright long after the creator is dead. You can't get them to testify under oath and so bogus copyrights like this are inevitable.

    Here Warner had evidence that the lyrics predated their claim from other sources, and and the music they never made a clim on, so what they did was claim copyright on the lyrics based a piano arangement.

    They would have known their claim was false because so many claims have been made about this copyright they would have examined it to protect their multi-million investment, so they likely acted to deceive.

  • Old news (Score:2, Insightful)

    Read about this like 5 days ago. Anything else you guys want to present as "news". Perhaps the death of Jimmy Hendrix or that new Godfather II movie?

    • Re: (Score:2, Redundant)

      You've a 6-digit UID and you're just now figuring this out?

      (BTW, some of us who don't live in the US might not have heard about this yet. It doesn't seem to have been widely reported elsewhere.)

    • by Nyder ( 754090 )

      Read about this like 5 days ago. Anything else you guys want to present as "news". Perhaps the death of Jimmy Hendrix or that new Godfather II movie?

      You using your dad's account? Because in the 10+ years I've been on here, late news is the standard. In fact, 5 days late isn't even considered late on Slashdot, where we get stories that are years old frequently.

      Just sayin.

  • Maybe finally, there is a noticeable public backlash against indefinite copyright, and they are doing this to pacify that. The trick usually works.

  • From TFA comments:

    If people sing it in a different key, is that copyright infringement?

    Yes. [wikipedia.org] (At least in Australia.)

  • by PPH ( 736903 ) on Saturday August 01, 2015 @11:39AM (#50229537)

    ... we should all switch to the Beatles version of Happy Birthday [youtube.com]. Apple Records needs all the support it can get defending its copyrights and trademarks.

  • They're just claiming the song book wasn't officially licensed. Without proof that it was it's the copyright holders word against theirs, and judges in America always, always side with property rights.
  • Could corporations who paid for licenses for the so-called rights to use the song sue Warner Music to get (some) of their money back?
  • crappy summary (Score:5, Informative)

    by SpammersAreScum ( 697628 ) on Saturday August 01, 2015 @12:40PM (#50229731)

    To say the "new evidence surfaced from Warner Music" is rather misleading. The plaintiffs independently found the evidence; what they got from Warner had the evidence "blurred out". Here's the summary from TFA:

    "(1) Warner/Chappell Music (who claims to hold the copyright for the publishing, if it exists) suddenly "found" a bunch of relevant documents that it was supposed to hand over in discovery last year, but didn't until just a few weeks ago, and (2) a rather important bit of information in one of those new documents was somewhat bizarrely "blurred out." This led the plaintiffs go searching for the original, and discover that it undermines Warner Music's arguments, to the point of showing that the company was almost certainly misleading the court. Furthermore, it definitively shows that the work was and is in the public domain."

    Warner, of course, denies that conclusion. rsilvergun may be right, but the date of the songbook relative to the date of the "copyright" and of the changes to copyright law would seem to weaken Warner's argument fatally.

  • Remember a few days ago, The UK proposed a 10 year copyright violation imprisonment? [slashdot.org] Next up, what if the "rights" holders for "Happy Birthday" decide to go all RIAA and sue everyone they can. All you have to do is open up Facebook or Instagram, and bam, thousands of families can be taken straight to prison for ten years. That'll teach them.
  • Here's a copy published in 1911 (words only, but it makes it clear that this song well predates the 1935 date the copyright claimants are pegging their millions on).

    Title: The Elementary Worker and His Work
    Author: Alice Jacobs, et al
    Year: 1911

    https://books.google.com/books... [google.com]

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