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“Happy Birthday To You” And What’s Wrong With Intellectual Property Law

copyright-law

“Happy Birthday To You” is perhaps one of the best known songs of the past century. It’s become an almost mandatory part of any birthday celebration, and its lyrics are instantly familiar. While you’re likely to hear it during a backyard birthday party, though, there are plenty of places where you’re not going to hear it. Your’re unlikely to hear it in a movie, for example, even if the scene in question is a birthday party for a character where it would seem entirely natural. If you go out to dinner at a restaurant such as the Olive Garden, the wait staff will be singing some  other song that nobody’s ever heard of as part of their eternally annoying birthday singalong. And, you’re not going to hear it much on the radio or television either. The reason for all of this is because the song, written more than 100 years ago, is still under a copyright owned by a subsidiary of the massive Warner Brothers entertainment empire. Using the song in any commercial context means paying royalties to the copyright owner, royalties that can often run into thousands of dollars depending on how the song its used. Now, a filmmaker working on a documentary about the song is going to court to try to get that copyright nullified:

The song “Happy Birthday to You” is widely credited for being the most performed song in the world. But one of its latest venues may be the federal courthouse in Manhattan, where the only parties may be the litigants to a new legal battle.
The dispute stems from a lawsuit filed on Thursday by a filmmaker in New York who is seeking to have the court declare the popular ditty to be in the public domain, and to block a music company from claiming it owns the copyright to the song and charging licensing fees for its use.
The filmmaker, Jennifer Nelson, was producing a documentary movie, tentatively titled “Happy Birthday,” about the song, the lawsuit said. In one proposed scene, the song was to be performed.
But to use it in the film, she was told she would have to pay $1,500 and enter into a licensing agreement with Warner/Chappell, the publishing arm of the Warner Music Group. Ms. Nelson’s company, Good Morning to You Productions, paid the fee and entered into the agreement, the suit says.
“Before I began my filmmaking career,” Ms. Nelson said in an e-mail forwarded by her lawyer, “I never thought the song was owned by anyone. I thought it belonged to everyone.”
The lawsuit notes that in the late 1800s, two sisters, Mildred J. Hill and Patty Smith Hill, wrote a song with the same melody called “Good Morning to All.” The suit tracks that song’s evolution into the familiar birthday song, and its ownership over more than a century.
But although Warner/Chappell claims ownership of “Happy Birthday to You,” the song was “just a public adaptation” of the original song, one of Ms. Nelson’s lawyers, Mark C. Rifkin, said in a phone interview.
“It’s a song created by the public, it belongs to the public, and it needs to go back to the public,” Mr. Rifkin said.
A spokesman for Warner/Chappell declined to comment on the suit. The company paid $25 million in 1988 to acquire Birchtree Ltd., a small company whose musical holdings included the birthday song.
Mr. Rifkin cited an estimate that Warner/Chappell collected approximately $2 million per year in licensing fees for the song. He added that the suit asks that the firm return all the fees for the song it has collected in the past four years.

The fact that a song written when Grover Cleveland was elected to his second non-consecutive term as President is generating $2,000,000 in licensing fees some 121 years after the fact is both an amazing fact and a testament to who perverted our copyright laws have become. The story behind how this happened is fairly interesting:

When the Hill sisters first composed the song in 1893, it was called “Good Morning to All.” Somewhere along the line the tune evolved into the version that is currently popular. The song has traditionally been regarded as copyrighted because the lyrics appeared in a songbook in 1924 and a piano arrangement was published in 1935. As such, it would neatly fit into changes in copyright law that conferred a lengthy 95 years of protection for works created after 1923. Had the songbook been published any earlier, there wouldn’t be any question  as to whether a license fee was needed when, for example, Marilyn Monroe sang it to John F. Kennedy in 1962.

Now, the documentary film company says it has “irrefutable documentary evidence, some dating back to 1893, [which] shows that the copyright to ‘Happy Birthday,’ if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to ‘Happy Birthday,’ those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935.”

The lawsuit says that in 1893, the Hill sisters sold and assigned their rights to a written manuscript that included the hit song to Clayton Summy in exchange for 10 percent of retail sales. That year, “Good Morning to All” is said to have been published in a songbook titled Song Stories for the Kindergarten, and a copyright application was filed the next year. In the following years, there would be more publications of this initial song and more copyright registrations.

Then, the lawsuit states, “Even though the lyrics to ‘Happy Birthday to You’  and the song ‘Happy Birthday to You’ had not been fixed in a tangible medium of expression, the public began singing ‘Happy Birthday to You’ no later than the early 1900s.”

As evidence, the lawsuit cites a January 1901 edition of an Indiana school journal that described children singing the words “happy birthday to you.” And then, in what the plaintiffs might hope will become a smoking gun, there’s citation to a copy of a 1911 work published by the Board of Sunday Schools of the Methodist Episcopal Church printing the following lyrics:

“Happy birthday to you, Happy birthday to you, Happy birthday, dear John, Happy birthday to you. (Sung to the same tune as the ‘Good Morning’) [NOTE: The songs and exercises referred to in this program may be in these books:... 'Song Stories for the Sunday School,' by Patty Hill.]“

The religious school is reported to have filed a copyright application on this in 1912.

This might not conclusively settle the issue, as the sheet music that would use the song title “Happy Birthday to You” for the first time came later.

But the lawsuit aims to block various paths by which Warner/Chappell might assert its copyright control. For instance, the plaintiffs say that the publisher can’t rely on late 19th century and early 20th century copyrights for the “Good Morning” melody because those have either expired or not been renewed. And the publisher allegedly can’t rely on the 1935 piano arrangement because the works by then were not “original works of authorship, except to the extent of the piano arrangements themselves.”

The song, and the legal issues surrounding it, were also the subject of a research paper by George Washington University Law School Professor Robert Brauneis called Copyright and the World’s Most Popular Song. It’s about 60 pages long and a bit heavy on Copyright Law, but it makes for an interesting read if you’re interested in the subject

In their lawsuit, the Plaintiffs allege that, absent the relief that they are requesting, the copyright for the song will last until at least 2030, a full 128 years after the song was first written. That, of course, assumes that Congress doesn’t take further action between now and then to further extend existing copyright protections. This is something that Congress has done on several occasions already, so that’s certainly not beyond the realm of possibility. For example, when many of the first Disney productions were released the existing law provided for a copyright that would last for 75 years. Had that law remained in effect, those productions, and the characters associated with them, including most of Disney’s iconic characters such as Mickey Mouse, would be considered public domain and Disney would be unable to prevent outside parties from creating their own productions.1  Thanks to intensive lobbying and, of course, campaign contributions from Disney and other entertainment companies, though, Congress has intervened several times to extend existing copyrights on works published nearly a century ago to points where, even if the law isn’t altered again, those works will be under copyright protection for decades yet to come. It’s also worth noting that this birthday song is not the only area where long term copyright issues have become a legal issue recently. There are also pending lawsuits dealing with the copyright status  of Sherlock Holmes and Zorro.

The story of “Happy Birthday To You” is, of course, just one example of how massively screwed up our Intellectual Property laws have become. Thanks largely to the fact that these are laws that immensely benefit a small segment of the population that is willing to spend a lot of money to protect its interests, we have a situation where the law favors copyright and patent holders far more than  it favors the public as a whole. Glenn Reynolds pointed out the problems this creates in a recent piece for Popular Mechanics:

Intellectual property law is supposed to promote experimentation, not hold it back. A similar problem in 17th-century England led to the precursor of our own system of patents and copyrights. In those days British monarchs often granted monopolies to courtiers in exchange for money or political support. The holder had the exclusive right to sell a product, anything from playing cards to French perfume. These unpopular arrangements were political payoffs, not rewards for introducing new products. And the abuses got so bad that in 1624 Parliament passed a law banning monopolies except as a reward for inventors.

Fast-forward to the drafting of the United States Constitution and you find similar thinking. Thomas Jefferson opposed all government-granted monopolies, but James Madison argued that while monopolies generally are bad, there is a place for patents and copyrights. In the end, the Patent and Copyright Clause (Article I, Section 8) empowered Congress “[t]o 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.”

The idea was that innovators would be rewarded with a short-term monopoly on their work. Afterward it would enter the public domain, hopefully sparking further creations or discoveries. In the early days the Constitution’s “limited times” were quite limited: 14 years for patents; 14 years, plus a potential 14-year renewal term, for copyrights. And patents were strictly scrutinized to ensure that they represented real inventions. (Jefferson himself, when he was secretary of state, served as a patent examiner, so important did he consider this task.)

Nowadays the limited times aren’t so limited. Copyright has been extended to the life of the author plus 70 years; corporate works (with no living person as “author”) get a 120-year term. Patents are good for just 20 years, but there’s far less scrutiny to ensure that they represent something truly new—a lot of “nuisance patents” are filed to provide bargaining chips rather than to protect actual creativity. Also, influential companies often get Congress to extend their own patent rights through special legislation. Does a century-plus exclusive right encourage invention more than a 28-year exclusive right? It’s doubtful.

That is precisely what’s wrong with our current system of IP law I would submit.The Founders gave Congress the 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.” Both from the text of the Constitution itself and the contemporary debates on the subject, it’s clear that the intention  was that by granting inventors and artists a limited  period of exclusivity for their works, it would encourage innovation in the sciences and arts. The fact that they intended this to be a limited  period is confirmed by the fact that the earliest patent and copyright laws granted  protection for what would today consider very short periods of time. The idea that the protections provided by patents and copyrights would last for a century or more likely never occurred to the men gathered in Philadelphia in 1787. More importantly, as copyright and patent laws have become more restrictive  it’s become more and more doubtful that our Intellectual Property laws are acting in the public interest.

What happens to the copyrights that protect “Happy Birthday To You” long after the writers of the song died is, in the end, not of earth shattering consequence. What the case means for the innovation that is needed to drive our economy, however, is far more important.

Here’s a copy of the Complaint:

Good Morning To You Productions v. Warner-Chappell Music by dmataconis

1 The Mickey Mouse example in particular is a complicated one because, outside Copyright Law, the Mickey Mouse character is likely also considered a Trademark of Disney itself, and Trademarks are granted even more extensive protection than copyrighted material.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Andre Kenji says:

    Just a dumb correction: Warner Music Group was divested from Time-Warner some years ago. It´s a independent company, owned by conglomerate founded by a Ukrainian-American.

    Like or Dislike: Thumb up 0 Thumb down 1

  2. Andy says:

    Wow, learned something new today, thanks.

    Like or Dislike: Thumb up 0 Thumb down 0

  3. stonetools says:

    Copyright protection has really gotten absurd. Unfortunately, the unjust state of copyright law has provided cover for the massive and growing industry of Internet piracy that would remove all copyright protection.
    Complicating the matter is that copyright law is often a matter of international treaties. Its a tangled mess, really.
    If I were God Emperor, I would decree that copyright protection would be for no more than 70 years from the date of creation and make that retroactive for everything. Seventy years is more than long enough for the copyright holders to wring all the profit they need from their properties

    Like or Dislike: Thumb up 7 Thumb down 0

  4. Dave Schuler says:

    To add insult to injury, the empirical evidence that IP promotes innovation or creativity is slim to none. That means that not only has copyright been extended beyond all reasonable bounds, it’s incapable of fulfilling its constitutional purpose.

    Like or Dislike: Thumb up 3 Thumb down 0

  5. michael reynolds says:

    As a guy who makes 100% of his living producing copyrighted material, I agree with john personna’s take. Pick a reasonable time. 70 years sounds as good as any other.

    Dave, my evidence that copyright promotes creativity is as obvious as the evidence that people like money and work hard to get it. Obviously I didn’t write 150 plus books in order to give them away. Without copyright I’d be doing something else for a living, and despite the fiction that we are all in it just for the love of literature, 90% of writers would also be in some other line of work. Along with songwriters, etc…

    To argue that profit isn’t a motivator is kind of flying in the face of thousands of years of human history.

    Like or Dislike: Thumb up 7 Thumb down 1

  6. john personna says:

    @michael reynolds:

    The way I got my 50 year preference was to take the old 28 (plus 28 renewal) of the 1909 copyright act, and .. round down a bit. 70 would be rounding up, but both are in the ballpark.

    The nice thing about either of those is simplicity and efficiency. One need only inspect the copyright notice on a book or CD, add 50 or 70, and see if it is in or out of copyright.

    The 1976 law, replacing the 1909 version, created a mess:

    The 1976 Act, however, substantially increased the term of protection. Section 302 of the Act extended protection to “a term consisting of the life of the author and 50 years after the author’s death.” In addition, the Act created a static seventy-five-year term (dated from the date of publication) for anonymous works, pseudonymous works, and works made for hire. The extension term for works copyrighted before 1978 that had not already entered the public domain was increased from twenty-eight years to forty-seven years, giving a total term of seventy-five years. In 1998 the Copyright Term Extension Act further extended copyright protection to the duration of the author’s life plus seventy years for general copyrights and to ninety-five years for works made for hire and works copyrighted before 1978.

    Now no would-be scanner and encyclopedia builder can simply inspect a book’s front plate to see if it is or is not fair game. The law pretty much requires an extensive copyright search.

    Even works in the public domain have a high bar against their use in the public domain.

    Like or Dislike: Thumb up 3 Thumb down 0

  7. john personna says:

    BTW, my guess is that “Happy Birthday” is not actually under valid copyright, and that it has been a scam.

    Like or Dislike: Thumb up 6 Thumb down 0

  8. Andre Kenji says:

    @michael reynolds:

    Without copyright I’d be doing something else for a living

    I doubt. You don´t get copyrights for comments on blogs.

    Like or Dislike: Thumb up 3 Thumb down 0

  9. big brother says:

    great blog I’m a huge Big Brother fan from Norway

    Like or Dislike: Thumb up 0 Thumb down 1

  10. steve s says:

    Can somebody please copyright Andre Kenji’s f*cked up apostrophe so that he has to use a normal one that kerns properly?

    Like or Dislike: Thumb up 1 Thumb down 0

  11. Andre Kenji says:

    @steve s:

    Can somebody please copyright Andre Kenji’s f*cked up apostrophe so that he has to use a normal one that kerns properly?

    Descupas, inglês não é minha língua nativa.

    Like or Dislike: Thumb up 3 Thumb down 1

  12. michael reynolds says:

    @Andre Kenji:

    This isn’t writing. This is the break from writing.

    There’s a sort of understanding among writers that we don’t mention money to civilians. It’s all part of some absurd throw-back to “gentle” status. We’re supposed to be above the common herd who work for money.

    But every time I get together with writers in some bar (and it’s always a bar) what do we talk about? Money. We would beat the crap out of the first guy who started up about inspiration. We talk agents, editors, rights deals, contracts and sales.

    Like or Dislike: Thumb up 4 Thumb down 1

  13. michael reynolds says:

    @john personna:

    It’s even worse with music. I’ve tried a dozen times to get rights to reprint lyrics. It’s a nightmare. You can’t find the rights holder, if you do find them you can’t contact them, if somehow you get through to them they’re either nuts (You can use four lines of lyrics for 10 thousand bucks) or occasionally sane and decent. Agent Orange, Methadones and Shot Baker all in the sane category. Punk rockers, of course. Paul Simon’s people took two years to get back to me. Two years after I’d given up and published without the lyrics.

    Like or Dislike: Thumb up 4 Thumb down 0

  14. Console says:

    @michael reynolds:

    To argue that profit isn’t a motivator is kind of flying in the face of thousands of years of human history.

    True. But copyright only protects a particular way of making money. But that’s not the only way an artist can make money. And books have been around a lot longer than copyright has.

    Not that I think copyright doesn’t have merit. Just that a guy with copyright that expires within his lifetime is probably going to be more prolific than a guy who lucks out and gets that golden goose.

    Like or Dislike: Thumb up 2 Thumb down 0

  15. michael reynolds says:

    @Console:

    I should point out that my copyright concerns are not about piracy. They’re pains in the ass (and thieves) but not really a big deal. My concern is about major corporations with names like Disney and Warner and Sony.

    Like or Dislike: Thumb up 7 Thumb down 1

  16. Peter says:

    As the joke goes, if a pharmaceutical company spends many years and hundreds of millions of dollars inventing a drug that cures cancer, it gets 20 years of patent protection. If a musician spends a couple of hours writing a song about curing cancer it’s copyrighted for generations to come.

    Like or Dislike: Thumb up 5 Thumb down 0

  17. Andre Kenji says:

    @michael reynolds:

    This isn’t writing. This is the break from writing.

    Nah, your blog comments are writing. And a very fine form of writing.

    But every time I get together with writers in some bar (and it’s always a bar) what do we talk about? Money.

    There is only one thing that´s worse than talking about money: talking about the absence of money. ;-)

    But, seriously, I understand that. Here in Brazil it´s very difficult to make a living as a writer and people publish books just for the love of the thing. In the end, you have plenty of dilettantes posing as writers, but that can´t communicate with any public.

    A writer should be able to pay his/her bills with his/her craft.

    Like or Dislike: Thumb up 5 Thumb down 1

  18. ernieyeball says:

    @michael reynolds:

    A mark, a yen, a buck, or a pound…Money makes the world go around!

    http://www.youtube.com/watch?v=I8P80A8vy9I

    Thank You Bob Fosse. RIP

    Like or Dislike: Thumb up 3 Thumb down 0

  19. michael reynolds says:

    @Andre Kenji:

    That’s kind of you to say.

    I’m surprised Portuguese language literature isn’t more successful in Brazil. You’ve got 200 million Brazilians and 10 million old country Portuguese. That is not a small potential market.

    Like or Dislike: Thumb up 2 Thumb down 1

  20. [...] they become public domain material? Over at Outside the Beltway, Doug tackles this question with a bit of historical perspective, where he points out that patents only last for 20 years, but the copyright on a song can extend [...]

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  21. murray says:

    There is one thing even more ridiculous than the copyright of this silly tune: bothering about it.

    Billionaires such as Paul Allen have used the ridiculous American patent laws to cash in fortunes in ways that are far more damageable for innovation and creativity than this distraction.

    Like or Dislike: Thumb up 1 Thumb down 1

  22. Andre Kenji says:

    @michael reynolds:

    You’ve got 200 million Brazilians and 10 million old country Portuguese. That is not a small potential market.

    European Portuguese is a different language than Brazilian Portuguese(Angola and Mozambique also have their own versions of the Language). José Saramago mandated that his books should be published in European Portuguese, but almost all Portuguese Authors are “translated” when they are published in Brazil. I think that´s why Eça de Queiroz, an excellent writer, is mostly a author that people reads because of school assignments.

    Culturally speaking, many Brazilians do not read. Even people in the middle classes and in the elites do not read.. And when compared to English and Spanish, roughly 250 million people is a relativelly small number..

    By the way. there is a superb Brazilian Kiddie book author, Monteiro Lobato. He was a Conservative that sympathized with Eugenics and Ku Klux Klan (The portrayal of a Black Maid in his books is clearly racist), but he knew how to write engaging books for children(there was lovely references to all kinds of things, from World Geography to Classic Mythology).

    If I were an American writer of teenage Literature I would learn Portuguese just to read these books. It´s worth it.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. john personna says:

    @Andre Kenji:

    As an aside, I really don’t know why people like Charles Stross are translated into American English. Most readers can handle and would enjoy more British/Scottish words. Actually thinking about it, in many of his books they must translate words and not others to retain feel.

    @murray:

    Perhaps Happy Birthday is the wedge.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. rudderpedals says:

    @john personna: I didn’t know that about Charles Stross. We can’t handle the Queen’s English? I suppose not.

    So much good stuff. The full length SF and Laundry novels are particularly good fun.

    Like or Dislike: Thumb up 0 Thumb down 0

  25. rudderpedals says:

    There are a few exceptions though I’m glad to be rid of, notably Advertize and Colour.

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  26. john personna says:

    @rudderpedals:

    Remember the old joke that Harry Potter and The Goblet of Fire was being translated to Harry Potter and the Cup of Hot Stuff for the American market?

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  27. Andre Kenji says:

    @john personna: Portuguese is more complicated because there are bigger differences between the dialects — Brazilian Portuguese was heavily influenced by Native Indian, African and Arabic dialects. In Brazilian Portuguesa “Bicha” is slur against homosexual men, in European Portuguese it´s a waiting line.

    On the other hand, with things like telenovelas the European Dialect is becoming much more similar to the Brazilian dialect. There was also a spelling reform that tried to unite these two dialects some years ago.

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  28. john personna says:

    @Andre Kenji:

    I was just describing how we are over-protected from British English.

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  29. Andre Kenji says:

    @john personna: i understand. To be sincere, I´m so used to both the British and American accents that I don´t note these differences anymore.

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  30. [...] “Happy Birthday To You” And What’s Wrong With Intellectual Property Law (outsidethebeltway.com) [...]

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  31. Nancy says:

    Say, if you are going to pay for the rights to a birthday song, check out Doug Blumer’s, “The New Birthday Song” available on iTunes. At least a song from this century would get some royalty payments instead a of that old dirge.

    It is so much more fun to sing and easy to learn. The lyrics and chords are available at
    http://www.dougblumer.com

    Enjoy!

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