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The Courts Your Rights Online

"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.
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"Happy Birthday To You" Now Public Domain

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  • by U2xhc2hkb3QgU3Vja3M ( 4212163 ) on Wednesday September 23, 2015 @09:03AM (#50581771)
    A judge in the USA has ruled in favour of the obvious? Has someone contacted the devil yet?
    • 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.

    • 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)

        by ZipK ( 1051658 ) on Wednesday September 23, 2015 @09:31AM (#50581907)

        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)

          by shentino ( 1139071 ) <shentino@gmail.com> on Wednesday September 23, 2015 @11:11AM (#50582853)

          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.

        • by penguinoid ( 724646 ) on Wednesday September 23, 2015 @11:52AM (#50583201) Homepage Journal

          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.

          • We should apply RIAA logic and assume that each person that heard a weird birthday song meant that 100 other people heard it too.
          • by ebvwfbw ( 864834 )

            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.

            • 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

              • by ebvwfbw ( 864834 )

                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

    • by Spazmania ( 174582 ) on Wednesday September 23, 2015 @09:36AM (#50581943) Homepage

      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.

      • 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.

        • by NotInHere ( 3654617 ) on Wednesday September 23, 2015 @10:04AM (#50582191)

          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).

          • 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.

      • Re: (Score:2, Informative)

        by Anonymous Coward

        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.

      • by BitterOak ( 537666 ) on Wednesday September 23, 2015 @05:23PM (#50585799)
        Not only that, but keep in mind this is just a district court judge. His ruling is only binding in his jurisdiction. Warner can and almost certainly will appeal. The first appeal will probably go to the 9th Circuit Court of Appeal, then possibly the Supreme Court. A decision like this, which really has an impact on the losing side's business model is exactly the type that frequently gets overturned. So, don't put on the birthday hats yet; this is far from over.
    • by Ihlosi ( 895663 ) on Wednesday September 23, 2015 @09:42AM (#50581985)
      Has someone contacted the devil yet?

      We tried, but sudden blizzards seem to have interrupted all forms of communication.

      • 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.

    • 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.

    • by DiEx-15 ( 959602 )

      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.

  • Kevin Smith can let Ben Affleck sing it all he wants now royalty free.
    • "Kevin Smith can let Ben Affleck sing it all he wants now royalty free"

      Sure. As long as the rest of us are paid royalties for having to listen to Ben Affleck sing.
  • by wisnoskij ( 1206448 ) on Wednesday September 23, 2015 @09:04AM (#50581775) Homepage
    So does this mean the the generic tune/sheet music is now is the public domain, and anyone can sing it. But all performances of the song are still owned by the original authors? I still cannot go and download any version of this song that the author has not explicitly released to the public for free?
    • Re:The Generic Tune? (Score:5, Informative)

      by Sique ( 173459 ) on Wednesday September 23, 2015 @09:17AM (#50581837) Homepage
      This was and has ever been the case for public domain works. Bach's Toccata and Fugue d-Minor is in the public domain, but performances of them are in general not.
    • 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.)

      • Do you mean the original performers? (Assuming they had the "right" to publicly perform the work to begin with.)

        Sure, if you had a camera around when Bach first played his works, you'd by now be welcome to upload the file to youtube.

        Wait, what? :)

      • by Anonymous Coward

        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.)

    • Apparently the tune is already public domain with or without the court decision, according to the LA Times [latimes.com]

      Warner and the plaintiffs both agreed that the melody of the familiar song, first written as "Good Morning To All," had entered the public domain decades ago. But Warner claimed it still owned the rights to the "Happy Birthday" lyrics, leaning on the 1935 copyright claim.

      So an instrumental performance (whistling or humming) or a parody (per fair use rights) should be in the clear.

  • Not good enough (Score:5, Insightful)

    by cmdr_klarg ( 629569 ) on Wednesday September 23, 2015 @09:05AM (#50581781)

    It should be public domain due to how old it is, not that Warner doesn't have a valid copyright.

  • by MeistaDieb ( 3647703 ) on Wednesday September 23, 2015 @09:16AM (#50581833)
    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.
    • by turp182 ( 1020263 ) on Wednesday September 23, 2015 @09:22AM (#50581855) Journal

      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]

      • by Duckman5 ( 665208 ) on Wednesday September 23, 2015 @10:14AM (#50582279)
        I'm sorry but I read your submission and it quotes the article saying "the world’s most popular song belongs to...the world." What other interpretation is there besides that meaning it's public domain? As the AC below (and the articles) state, the song was published in 1922 without a notice of copyright. Under the laws governing copyright at the time, that means that they could not assert copyright on the Happy Birthday words. It's public domain.
        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.
        • by tepples ( 727027 )

          A publication in 1921 would have caused the copyright to expire at the end of 1996 under the 75-year term then in effect.

      • by mark-t ( 151149 )
        Does that mean that corporations that have paid licensing fees to Warner for the song in the past can (rightfully) sue them to get their money back?
    • by cdrudge ( 68377 )

      The song has not reached the age to be public domain yet.

      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

      • by mark-t ( 151149 )

        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.

    • by Anonymous Coward

      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.

    • by jdavidb ( 449077 )

      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

  • by Anonymous Coward on Wednesday September 23, 2015 @09:17AM (#50581839)

    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.

    • by crow ( 16139 ) on Wednesday September 23, 2015 @09:23AM (#50581863) Homepage Journal

      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.

      • Re: (Score:3, Interesting)

        by Passman ( 6129 )

        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".

      • by Alomex ( 148003 ) on Wednesday September 23, 2015 @12:15PM (#50583375) Homepage

        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).

  • One of the options we are currently considering is having the artist $popular_with_youth_today rework the song and pimp the reworked version. Sing the new popular version. We dare you. --Warner/Chappell Music
  • All the waste (Score:5, Insightful)

    by xenog ( 3653043 ) on Wednesday September 23, 2015 @09:36AM (#50581937)
    Copyright law is a ridiculous monster these days. All effort and energy wasted in this case is bewildering. People spent many years studying this case to free this one song, to prove that it isn’t “owned” by anyone. This is ridiculous, a hundred years after who wrote the melody died. We are holding our culture, our art, at ransom in the hands of faceless greedy corporate entities, for the benefit of nobody. Copyright was originally meant to encourage more art to be created, not this.
    • 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

      • by tepples ( 727027 )

        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.

  • by jtownatpunk.net ( 245670 ) on Wednesday September 23, 2015 @09:39AM (#50581965)

    There goes my side job of writing birthday jingles for chain restaurants. :(

    • by Anonymous Coward

      And mine for just-turned-18 short films.

  • by bbsguru ( 586178 ) on Wednesday September 23, 2015 @09:39AM (#50581967) Homepage Journal
    Happy Birthday to You!
    and this song is free too!
    Warner Bro-thers can Bite me!
    This one is G N U !
  • by Noxal ( 816780 ) on Wednesday September 23, 2015 @09:46AM (#50582033)

    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."

    • by jandrese ( 485 )
      Just how broken is our copyright system when a song from the 1800s is still in question?
  • 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...

    • by Anonymous Coward

      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?

  • by Thud457 ( 234763 ) on Wednesday September 23, 2015 @09:53AM (#50582087) Homepage Journal
    Fern bars everywhere rejoice today.

    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!©

  • And it only took how many decades to sort this shit out?

  • As in birthday cake..
  • by snowsmann ( 313238 ) on Wednesday September 23, 2015 @10:59AM (#50582725)
  • by flacco ( 324089 )

    In the 1980s I could not imagine the Berlin Wall coming down.

    This is kind of like that.

  • we won't have to listen to those custom birthday songs in chain restaurants.
  • Largely tunelessly, of course. The way it's meant to be sung. https://www.youtube.com/watch?... [youtube.com]

The computer can't tell you the emotional story. It can give you the exact mathematical design, but what's missing is the eyebrows. - Frank Zappa

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