"Happy Birthday To You" Now Public Domain 102
New submitter Duckman5 writes: As mentioned on multiple occasions, the popular song "Happy Birthday To You" has recently been the subject of a lawsuit between a couple of documentary filmmakers and Warner/Chappell Music. The judge in the case, George H. King, has finally issued his ruling and according to NPR and the LA Times, that song is finally in the public domain. Warner is still apparently "considering our options," so this may not be the end of it, but it seems to be a turn in the right direction. Also at the Washington Post, among many others.
Wait a minute... (Score:5, Funny)
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A judge in the USA has ruled in favour of the obvious? Has someone contacted the devil yet?
Yes. Walt Disney was given a small cup of ice water this morning.
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Wouldn't hot cocoa be more useful to him at this point?
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Probably a better joke than the convoluted never-expiring-Disney-patent-people-in-hell-want-icewater...
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This wasn't "ruling in favour of the obvious", this was making a ruling about which parts of "Happy Birthday" are copyrighted, based on the technicalities of the claim.
There has been no claim here that "Happy Birthday" could not possibly be under copyright, only that the words are not covered by the particular claim being disputed.
Re:Wait a minute... (Score:5, Interesting)
This wasn't "ruling in favour of the obvious", this was making a ruling about which parts of "Happy Birthday" are copyrighted, based on the technicalities of the claim.
Indeed, the song's author(s) apparently never asserted a copyright for the lyric, and the first company to do so did not seem to have gained that right from the authors. So the melody fell out of copyright long ago, and the lyric was never properly copyrighted in the first place. Now let's see if Warner has to return the monies they took for licensing a song that they didn't actually own.
Re:Wait a minute... (Score:4, Interesting)
Settlement agreements usually forbid appeals even if the facts change, and at any rate the statute of limitations for recovery of improperly paid fees is probably expired anyway.
Re:Wait a minute... (Score:5, Insightful)
Now let's see if Warner has to return the monies they took for licensing a song that they didn't actually own.
They ought to pay at least $10,000 per infringement -- that is, for each person who wanted to hear that song but was denied because Warner was claiming copyright. So, every time you heard a weird birthday song, $10,000 for each person present. And that's being generous, it should cost much more to directly infringe on people's liberties than to refuse to honor someone's state-granted monopoly.
Stealing from the public domain ought to hurt.
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Yes, RIAA should be a party to this as well. Judge - what's your total assets. Sign them over. Ok, settled.
Of course we the people will never see it. The lawyers as always will suck it dry.
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First of all, lawyers getting rich of a case like this isn't all bad. If the options are (1) let some ass continue doing something harmful to everyone, or (2) make some lawyer rich and stop the ass, I'd take (2) over (1) every time. But lawyer's fees are usually capped at a percentage of the final settlement, so it has to be better than (2) by a long shot.
It's inefficient (economically) that you can't sue for lawyer's fees, but that's what "pain and suffering" portions of settlements usually cover. Removing
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Guess I'm just frustrated. I must get 20 or 30 notices each year. I'm part of a class action suit. Almost all the time it's because I bought stock or owned stock during some time and I somehow was hurt. They get millions, I often end up with oh 30 cents. Sometimes I end up with something I can't possibly use. Like a coupon for more of their stuff that they can't give away now, or future service. I look at them because there might be a chance I hit the lottery with one. That'll be the one I didn't look at.
L
Judge didn't say public domain (Score:5, Insightful)
This is a misreport. The judge didn't say that the Happy Birthday song was in the public domain. What he said was that the folks who claimed to own it failed to prove that they owned it. No one could produce an evidence trail substantiating that the folks who filed for copyright in the 1930s actually owned it. That makes the claimed copyright invalid but it doesn't preclude the existence of a copyright.
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Remember: copyrights aren't patents. Grant of a patent means the government agrees you own the techonology. A copyright merely reports your claim of ownership -- you still have to prove it in court by producing artifacts from the copyright's creation such as drafts, notes and earlier versions.
Re:Judge didn't say public domain (Score:5, Informative)
From the ruling [latimes.com]:
The 1909 Copyright Act, which governs E51990, did not require that a work be registered to
obtain a federal copyright. See 2-7 Nimmer 7.16. But registration was nonetheless
highly desirable, not only because it was a precondition to the filing of an infringement
suit, but also because, once registered, the certificate of registration “shall be admitted in
any court as prima facie evidence of the facts stated therein.” 17 U.S.C. 209 (1909 Act);
see also 17 U.S.C. 410(c) (1976 Act) (providing for the presumption of validity in the
modern Copyright Act). Furthermore, “[a]lthough the ‘facts’ stated in a certificate of
registration are limited to the date, name and description of the work, and name of the
registration holder, a majority of courts have held that 209 [of the 1909 Copyright Act]
creates a rebuttable presumption that the certificate holder has met all the requirements for
copyright validity.” Acad. of Motion Picture Arts & Scis. v. Creative House Promotions,
Inc., 944 F.2d 1446, 1451 (9th Cir. 1991). Once a claimant shows that she has a
certificate of registration, the burden of proof shifts to the opposing party who must “offer
some evidence or proof to dispute or deny the [claimant’s] prima facie case.” United
Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011).
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You're right; I misinterpreted it as well. In this case the registration was defeated because the copy of the work filed with the registration was lost and the owner of the registration could not prove what it contained.
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This is a misreport. The judge didn't say that the Happy Birthday song was in the public domain. What he said was that the folks who claimed to own it failed to prove that they owned it. No one could produce an evidence trail substantiating that the folks who filed for copyright in the 1930s actually owned it. That makes the claimed copyright invalid but it doesn't preclude the existence of a copyright.
In the 1930s, before the Berne Conventions, it does make it public domain.
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Who cares? SCOTUS already proved it was ok to do retroactive clawbacks.
Re:Judge didn't say public domain (Score:4, Informative)
Re:Wait a minute... (Score:5, Funny)
We tried, but sudden blizzards seem to have interrupted all forms of communication.
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Look, the cow is home. I guess she finally got that check I sent in the mail. She just told the pig the news and he took off with it. The devil will know tomorrow.
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Re:Wait a minute... (Score:4, Insightful)
My guess is they'll still be litigating this ridiculous nonsense in 100 years, or by the time we have flying cars, whichever takes longer.
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A judge in the USA has ruled in favour of the obvious? Has someone contacted the devil yet?
They did, but his email account was set to auto-reply and stated something about shoveling snow.
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A judge in the USA has ruled in favour of the obvious? Has someone contacted the devil yet?
He was too busy shoveling snow out of his driveway.
Well now finally... (Score:2)
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Sure. As long as the rest of us are paid royalties for having to listen to Ben Affleck sing.
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The Generic Tune? (Score:3)
Re:The Generic Tune? (Score:5, Informative)
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But all performances of the song are still owned by the original authors?
Do you mean the original performers? (Assuming they had the "right" to publicly perform the work to begin with.)
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He does. Whether or not you are entitled to publicly perform a work, you still have copyright of your own performance of it. (You might not be able to perform it without acquiring performance rights, but nobody else - the owner of the rights to the song, the public, etc. has the right to copy your performance of a work without your permission.)
Melody is already in the public domain (Score:1)
Apparently the tune is already public domain with or without the court decision, according to the LA Times [latimes.com]
So an instrumental performance (whistling or humming) or a parody (per fair use rights) should be in the clear.
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Not only that but you can now from today decode it from MP3 format without having to pay any patent license fees.
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Not only that but you can now from today decode it from MP3 format without having to pay any patent license fees.
Really? My sources say some MP3 patents expired this week, but others expire in 2017 [tunequest.org]: US Patents 5,924,060; 6,009,399; and 6,185,539. A patent related to joint stereo (US Patent 5,703,999) appears to expire in 2016.
Not good enough (Score:5, Insightful)
It should be public domain due to how old it is, not that Warner doesn't have a valid copyright.
The song is NOT public domain (Score:5, Informative)
Re:The song is NOT public domain (Score:5, Informative)
I put in the first submission for the story and the title just stated that Warner didn't own the song.
The title was:
Federal Judge Rules Warner Doesn't Own Happy Birthday
Submitted at least an hour ahead of the other ones. A bit annoying actually. It is interesting though.
http://slashdot.org/submission... [slashdot.org]
No. It pretty much IS public domain (Score:5, Insightful)
I guess, theoretically, some cockroach could crawl out of the woodwork tomorrow and say "but look, my great grandaddy published the words WITH the copyright statement in 1921! I own the words!" Yes, it's possible, but not particularly likely. The only group to ever assert copyright on it was Warner and the chain of holders before they finally purchased it. At this point it might as well be over.
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A publication in 1921 would have caused the copyright to expire at the end of 1996 under the 75-year term then in effect.
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Since the publisher was not the copyright holder, and only the licensee, it's unlikely that he had the right to put it in the public domain. It's not even certain that Summy Co. had the right to it at that point in order to license it in the first place.
Re:The song IS public domain (Score:5, Informative)
That's a legal argument that the plaintiffs made. The judge denied that one.
That's correct, the judge denied the argument. However, he argued the argument is denied because the plaintiffs didn't provide evidence that the publication of
Happy Birthday in The Everyday Song Book in 1922 was authorized.
He didn't argue that it was denied because the publication was only done by a licensee, like you say.
If you published an authorized work under the Copyright Act of 1909, and missed a copyright mark, the work would become public domain. From the ruling [latimes.com] (some quotes removed):
Under the Copyright Act of 1909, one secured a federal copyright by publishing a
work with proper notice. Before such publication, the work was protected by common
law copyright. If the work was published without notice, two things happened: the
author (1) failed to obtain a federal copyright and (2) lost the common law copyright as
well.
General publication, which would cause a forfeiture, occurs “when, by consent of
the copyright owner, the original or tangible copies of a work are sold, leased, loaned,
given away, or otherwise made available to the general public, or when an authorized
offer is made to dispose of the work in any such manner, even if a sale or other such
disposition does not in fact occur.” 1 Nimmer 4.03. By contrast, a limited publication,
which does not cause a forfeiture, is when “tangible copies of the work are distributed
both (1) to a ‘definitely selected group,’ and (2) for a limited purpose, without the right of
further reproduction, distribution or sale.” Acad. of Motion Picture Arts & Scis., 944 F.2d
at 1452. Moreover, “mere performance or exhibition of a work does not constitute a
[general] publication of that work.” Am. Vitagraph, Inc. v. Levy, 659 F.2d 1023, 1027
(9th Cir. 1981).
The judge even said that this would apply for the 1922 publication:
If the [1922] publication was authorized, that could
make it a general publication (without proper copyright notice), divesting the Hill sisters
of their common law copyright.
But later on, he sais:
As Defendants [Time Warner] point out, there is no direct evidence
that the Hill sisters had authorized Summy Co. to grant permission for the publication of
the lyrics in The Everyday Song Book.
And concludes:
Plaintiffs cannot satisfy their initial burden under Rule 56. Accordingly,
Plaintiffs’ Motion is DENIED as to this issue.
Re:The song IS public domain (Score:5, Insightful)
It doesn't matter, because the very existence of that songbook means the song predates 1922, which would mean even an "authorized" 1922 publication's copyright would have expired.
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My thinking is that the judge said "could" here. Unless there was really strong evidence that it was authorised by the Hill Sisters, I'd imagine the judge err-ing on the side of the Copyright holder since depriving someone of their copyright on what amounts to a minor procedural error would seem pretty unfair. The law is meant to be more neutral than that, but that's an ideal that tends not to be met in practice.
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Maybe, maybe not. Depends when it was first published by the writer, if there was a copyright notice, and if the copyright was renewed after it's initial 28 year term. If it was published before 1923, or without a notice after 1923, or the original copyright was never renewed if it had a notice after 1923, then it would be in the public domain now.
The only way it would be still protected under a yet unknown copyright is if it was published between 192
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The 1935 claim is bullshit. The song was being widely sung years before to the tune of "Good Morning to All", and the 4th edition of the The Everyday Song Book, published in 1922, included the lyrics to the song "Happy Birthday" without any copyright notice at all.
This was the proverbial "smoking gun" in Warner's claim that lost them the copyright.
The song IS public domain (Score:3, Informative)
The judge did not rule that it is public domain, he ruled that the copyright only covered specific piano arrangements of the music, not the actual song an not the lyrics. Which is interesting as the evidence held by Warner/Chappell Music proved they never had legal claim to copyright on it, and that any copyright would have ended 10 years ago. I'm guessing the judge was just throwing them a bone.
Warner/Chappell Music kept all the original documentation from the Clayton F. Summy Co. filing of the copyright.
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The judge didn't rule that that song is public domain now. It was just ruled that Warner/Chappell Music is not the copyright holder as they claimed to be. There still could be a copyright owner. The song has not reached the age to be public domain yet.
If I run an extremely successful restaurant chain and my waiters perform the song every night for customers who are celebrating birthdays, it is extremely unlikely that anyone will sue me now, and if anyone does, it is extremely unlikely that they will succeed.
If I create an extremely successful movie and include a performance of the song in it with some characters in the movie who are privately celebrating a birthday, again, it is extremely unlikely that anyone will sue me now, and if anyone does, it is ex
Was *ALWAYS* in public domain (Score:5, Informative)
No, they found that it was NEVER under copyright, the claimed copyright was to a piano arrangement of it, NOT the music NOT the lyrics which were both pre-existing.
It shows the big problem of copyright longer than people lives, because this could have been settled decades ago if the original people who signed the contracts were there for deposition!
Dead people can't testify in court, and copyright no longer requires registration, so there is no way to verify the copyright state of works of long dead people. A lot of who you *think* owns the copyright sold it long ago, and the means to even verify the signatures on the contracts becomes debatable.
Re:Was *ALWAYS* in public domain (Score:5, Interesting)
Right. The court ruled that the copyright was never valid. Now the question is whether Warner will have to repay millions in royalties that they extorted with their false claims.
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Right. The court ruled that the copyright was never valid. Now the question is whether Warner will have to repay millions in royalties that they extorted with their false claims.
It depends.
If Warner filed a case against you and you settled out of court, probably not. You did, after all, settle.
If Warner filed a case and actually won in court, you might be able to appeal based on this "new evidence".
Re:Was *ALWAYS* in public domain (Score:4, Informative)
Now the question is whether Warner will have to repay millions in royalties that they extorted with their false claims.
The judge explicitly said that they should. (I know, I cheated, I actually RTFA, my bad).
Options (Score:1)
All the waste (Score:5, Insightful)
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Copyright was originally meant to encourage more art to be created, not this.
In the US, patents and copyright are expressly forbidden to Congress unless they are for the purpose of promoting the to progress of science and the useful arts. This is a consequence of them not being given the power to grant exclusive rights, and the 12th Amendment.
The Congress shall have Power ...
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;
Note that they don't have the power to secure exclusive rights to authors and inventors, they have the power to promote the progress of science and useful arts, and are merely allowed to grant monopoly rights as a way of doing so. If you doubt
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In the US, patents and copyright are expressly forbidden to Congress unless they are for the purpose of promoting the to progress of science and the useful arts.
However, in practice, the Supreme Court of the United States has chosen to defer to Congress on whether a particular act has such purpose.
There goes my side job (Score:3)
There goes my side job of writing birthday jingles for chain restaurants. :(
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And mine for just-turned-18 short films.
My own version (Score:5, Funny)
and this song is free too!
Warner Bro-thers can Bite me!
This one is G N U !
Re:My own version (Score:5, Funny)
Please refer to it as GNU/Happy Birthday.
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OK, so anyone who sings it to someone else now has an obligation to provide the text to anyone who heard it if asked to do so?
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Well played sir.
No. No it is not. (Score:3)
TFA:
"Robert Brauneis, a George Washington University law professor who has extensively researched the copyright history of the song, says the ruling does not explicitly place "Happy Birthday To You" in the public domain."
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It's not over until the fat lady sings (Score:2)
While Warner/Chapple says they are not considering an appeal, they say "we are reading the long opinion to see what our options are." [paraphrase] So they may decide to appeal after all. Then there is the other issue: repayment of royalties already received, going back decades. That may indeed trigger an appeal of the ruling, to hold off that fiscal event. At two million a year for decades, the cost of the appeal starts to look cheap...
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When my old company was found guilty of not paying employees correctly they had to consider all unpaid funds as stock purchases. Since the company was worth more at the time of the lawsuit then the time of the infraction the amount paid out was far greater then what was saved by not paying employees correctly. How do they compensate victims here for the loss of use of those funds?
fight the power! (Score:3)
Happy, Happy Birthday
From the Chili's crew
We wish it was our birthday
So we can party too, hey!
I've noticed servers singing actual "Happy Birthday to You" sporadically over the last few months.
Happy happy birthday
we hope we won't get sued
just for wishing happy birthday
to a generous tipper like you!©
Fabulous (Score:2)
And it only took how many decades to sort this shit out?
Free (Score:2)
Oblig (very relevant) xkcd (Score:5, Interesting)
http://xkcd.com/1581/ [xkcd.com]
Wow. (Score:2)
In the 1980s I could not imagine the Berlin Wall coming down.
This is kind of like that.
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http://gizmodo.com/warner-bros-fights-piracy-with-an-army-of-robots-tha-1643393748
It seems Warner was (not found to be, but still was) negligent in 2004 by using millions of bots to take down content, without ever even checking to see if it was fiar use.
Best part is that (Score:2)
Hooray, let us sing! (Score:1)