Althouse: "It may be the world's most popular song, but to perform it on TV and in movies requires a license fee."

June 13, 2013

"It may be the world's most popular song, but to perform it on TV and in movies requires a license fee."

"A new class action lawsuit aims to change that."

ADDED: The point isn't that it's so popular, it should be in the public domain. It's that it's so old.

45 comments:

edutcher said...: $1500?

It's exorbitant.

/sarc; 6/13/13, 5:11 PM
Peter said...: Would "Life of the author plus 99999999999999999 years" be a "limited term"? Disney Corp. would like to know.

If not, what about 999 years?; 6/13/13, 5:17 PM
Greg Hlatky said...: The entertainment industry's idea of a limited copyright term is eternity minus one day.; 6/13/13, 5:22 PM
Greg Hlatky said...: This comment has been removed by the author.; 6/13/13, 5:23 PM
William said...: Isn't there some point where Jay Gatsby and Scarlett O'Hara belong more to the American public than to the heirs of Fitzgerald and Mitchell?; 6/13/13, 5:26 PM
TML said...: Pay the $1500 and STFU.; 6/13/13, 5:36 PM
Palladian said...: Copyright law is ridiculous.; 6/13/13, 5:42 PM
bleh said...: That's why in movies they often sing For He's a Jolly Good Fellow in its place.; 6/13/13, 5:51 PM
Chip Ahoy said...: I was wondering about this, yes, just yesterday, I was watching YouTube videos of children playing with Snap Circuits and one the projects results in circuitry playing that song, annoying but the child was delighted because the Snap Circuits worked, and I thought, "hmm, Kids, you owe somebody a portion of a cent or something for that." It's for the children, think of the children.; 6/13/13, 5:53 PM
William said...: Since you can't patent DNA, how about producing a clone of Fitzgerald or Mitchell to write the musical comedy version of their books.; 6/13/13, 5:56 PM
Michelle Dulak Thomson said...: To me it looks like a good case. At the time, you could renew a copyright once, after 28 years, for another 28-year period, after which it expired. If the Hills didn't renew by 1921, the tune is PD and has been ever since. As for the words, I doubt such trivialities can fall under copyright in the first place, but even if they could, plaintiffs have found a "fixation" well over a decade before the one on on which the copyright claim rests.

The status of "Happy Birthday" being one of the most idiotic things in copyright law, I hope the suit prevails.; 6/13/13, 6:13 PM
Revenant said...: That the song is still under copyright is a pretty good example of just how retarded our copyright system is.

Congress is only allowed to implement copyrights and patents in order to encourage the arts and sciences. It is ridiculous to claim that you need to protect a work for seventy years after its creator is dead in order for him to feel "encouraged".; 6/13/13, 6:16 PM
jr565 said...: While I agree with copyright protections, Im pretty surprised that "Happy Birthday still is copyrighted. So, play other songs at birthdays in movies. Stop paying Warner Bros. They'll get the message; 6/13/13, 6:39 PM
Palladian said...: The same stupidity persists in the visual arts as well, with organizations such as The Artist's Rights Society doing rent-seeking on behalf of the greedy descendants of long-dead artists.; 6/13/13, 6:41 PM
Bruce Hayden said...: To me it looks like a good case.

Should be quite interesting. What looks to me like what happened is that the melody was written over 100 years ago with different lyrics, then a couple decades later someone suggested fairly close to the current lyrics sung to the older melody. Then a decade or so later, the predecessors in interest of the asserted copyright owners registered a new piano arrangement of the song with the C/R office, and then have bootstrapped that new piano arrangement into the copyright registration and resulting revenues we see to this day.

A lot of other interesting C/R subjects floating around as well. Mention is made about lack of fixation in a tangible medium, with is required for creation of a copyright. There was the publication of the original music and lyrics, and the publication of a suggestion to replace the original lyrics with the new ones. Both on paper, and, thus, fixation. But, not specifically together. Is that sufficient fixation? I would say yes.

Another interesting problem - much of early the publication of the music was without copyright notice, and prior to the 1976 Act (and joining the Berne Convention a decade later), that was fatal to copyright ownership, essentially acting as a dedication to the public domain.

Then there is the problem that there is apparently no legal continuity between the ownership of the original copyrights and the successor copyright claimants. The original company was dissolved without the copyrights being assigned to anyone, and, in particular, the closely related company that ultimately became part of the current claimant.

Of course, parties paint their cases to their advantage in the legal pleadings. Nevertheless, the plaintiffs here look to have a fairly strong case that there really isn't a copyright any more in the version of the song that is sung by millions every year.; 6/13/13, 7:21 PM
Michelle Dulak Thomson said...: Bruce Hayden,

Mention is made about lack of fixation in a tangible medium, with is required for creation of a copyright. There was the publication of the original music and lyrics, and the publication of a suggestion to replace the original lyrics with the new ones. Both on paper, and, thus, fixation. But, not specifically together. Is that sufficient fixation? I would say yes.

The trouble is that the fixation of the alternative lyrics occurred while the version with the original lyrics was still in copyright. What would really clinch the case would be a reference to the "Happy Birthday" words between 1921 and 1923. Because then it would be a PD tune with words that predated the attachment to the tune in 1924.

And, you know, I'd be very surprised if there aren't references to "Happy Birthday" between 1921 and 1923.; 6/13/13, 7:31 PM
jr565 said...: Copyright should certainly last for the duration of the artists life. But what about his estate? Should Yoko Ono be able to continue to put out John Lennon records, or should anybody?
So long as she wants to I don't see why that should be off limits.; 6/13/13, 7:35 PM
Gahrie said...: Anything copyrighted or patented from 1928 to the present day will always have their copyright extended.

The levithan named Disney will see to that.; 6/13/13, 7:36 PM
Gahrie said...: It is interesting to note that changes in copyright law seem to coincide with the looming expiration of copyrights originally granted in 1928.; 6/13/13, 7:38 PM
bagoh20 said...: This is exactly why I'm still 29 years old. My friends ain't got no Happy Birthday royalty money laying around.; 6/13/13, 7:43 PM
Revenant said...: The levithan named Disney will see to that.

Which made it particularly obnoxious that they put out a new Wizard of Oz movie based out-of-copyright material in order to avoid paying royalties.; 6/13/13, 7:45 PM
bagoh20 said...: What if you sing it in another language, like pig latin, or do a reggae version? Do you still have to pay?; 6/13/13, 7:46 PM
Cincinnatus said...: Actually there is good reason to think that Happy Birthday is in the public domain, because its first publication was long ago enough for its copyright to expire.

There is a good law review paper out somewhere, I need to find the link again.; 6/13/13, 8:23 PM
Cincinnatus said...: SSRN paper by Robert Brauneis George Washington University - Law School.; 6/13/13, 8:26 PM
Sydney said...: If anyone should have good evidence, it would be these plaintiffs, the documentarians of the "Happy Birthday" song.; 6/13/13, 8:29 PM
Chip S. said...: Seems to me the Mickey Mouse problem is a lack of reasonable alternatives to extended copyright.

I can see how, say, the widespread use of Porky Pig in porn or the use of Mickey's image to mislead people into thinking some crappy amusement park was a Disney operation would be things the Disney Corp. would want to be able to prevent.

But that doesn't require that they have exclusive rights to Donald Duck lunchboxes forever.

Can an entity that formerly held copyright still be allowed to sue for damages to its intangible assets thru harmful use of what used to be copyrighted, while not retaining exclusive rights to all uses of the material or image?; 6/13/13, 9:10 PM
Cincinnatus said...: Chip S., trademark law would allow prevention of those abuses you list.; 6/13/13, 9:13 PM
Chip S. said...: OK, thx Robin.

Seems like that should be good enough for Disney, let alone the Estate of Happy Birthday.; 6/13/13, 9:17 PM
rcocean said...: Isn't it funny how "Libertarians" those great lovers of the "free market" never attack copyrights?

After all, what are copyrights but GOVERNMENT GRANTED MONOPOLIES?

That's why Jefferson and the Founding fathers wanted them for a limited time only and their sole purpose was to ENCOURAGE the development of art and science.

But through greed and a corrupt congress there is not limit.

You'd think those "free market" advocates would be mucho angry. But nope.; 6/13/13, 10:05 PM
rcocean said...: Libertarians are like commies, they say one thing, but they're really after something else.

Both are boob bait.; 6/13/13, 10:06 PM
Chip S. said...: rcocean said...
Isn't it funny how "Libertarians" those great lovers of the "free market" never attack copyrights?

It would be great if you considered basing your factual assertions on actual facts.; 6/13/13, 10:17 PM
rcocean said...: Whatever. No true libertarian....

One more reason Commies and Libertarians are two sides of the same coin.

Both are constantly telling you that you JUST DON'T UNDERSTAND! TRUE Libertarians (communists) do or don't believe in XYZ. You just think they do. And all those self-described Libertarians who believe in XYZ, are JUST WRONG.

Oh and the Communist party (Libertarian party) DOESN'T represent TRUE Communism (Libertarianism). You need to READ X, to REALLY understand.

You see Libertarianism (Communism) is just so SUBTLE and COMPLEX and SOPHISTICATED that if criticize it, its just because you DON'T UNDERSTAND.; 6/13/13, 10:42 PM
Chip S. said...: Oh, you're drunk.

nm; 6/13/13, 10:44 PM
Beach Brutus said...: If the plaintiffs win, then all the neighborhood chain bar and grills can stop using their hokey homemade birthday raps to deliver that little piece of birthday cake when your friends spoil your day.; 6/13/13, 10:59 PM
rcocean said...: "Oh, you're drunk"

Geez, that's what I say to all the Libertarians.

Only instead of "drunk" substitute "Stoned".; 6/13/13, 11:12 PM
rcocean said...: Insert WC fields quote; 6/13/13, 11:12 PM
Jeff Gee said...: My favorite W C Fields quote is from “It’s a Gift.” He and his wife are asleep, it’s the early morning hours, and the phone rings. He answers, listens for a couple of moments, and says, “No, this isn’t the maternity ward!” and hangs up. His wife says, “Who was that?” He says, “It was a wrong number. They wanted the maternity ward.” “What did you tell them?” “I told them this wasn’t the maternity ward!” His wife thinks for a couple of beats. “Why would the maternity ward call YOU?” “They DIDN’T. They thought I was the maternity ward.” “Oh,” says his wife, “Now you’re changing your story, eh?”; 6/13/13, 11:31 PM
Bruce Hayden said...: The trouble is that the fixation of the alternative lyrics occurred while the version with the original lyrics was still in copyright. What would really clinch the case would be a reference to the "Happy Birthday" words between 1921 and 1923. Because then it would be a PD tune with words that predated the attachment to the tune in 1924.

I would still think that the suggestion in the Saturday Evening Post for using the new words with the old melody would be either fixation, or at least put it in the public domain. Probably both. And, yes, you don't have to be the first to create, or the first to register, to get a copyright, but I would think that the copyright claimant would have to show that they were not in receipt of the new lyrics from one of the most popular magazines of the time, putting new lyrics to their own tune in order to show authorship.

And, I am not sure if I understand your point about the registration of the original lyrics along with the tune. Not sure if I see how it matters.; 6/14/13, 12:04 AM
sdharms said...: You can thank Sonny Bono for the long term on copyrights for artistic products. And for the immense wealth in Hollywood it has helped create. He helped Disney also. Repubs often act like Dems and practice crony capitalism. He ensconced his in legislation.; 6/14/13, 5:00 AM
SteveBrooklineMA said...: I don't see why the guy who builds a better mousetrap has 20 years to gain from his patented invention, while the guy who draws a picture of a mouse gets life plus ump-teen years with his copyright.

These standards used to be more in line. I wonder how the politics has ended up pushing them apart.; 6/14/13, 9:20 AM
Insufficiently Sensitive said...: So much for the Constitutional granting of a temporary monopoly on the publishing rights of original works. 'Temporary' now means the lifetime of the composer plus 70 years, in order to furnish sufficient enrichment to the merchants who trade in publishing rights without regard to originating anything.

One hopes that a similar class action to this one be brought to represent the interests of the public, in rolling back that preposterous 'temporary' life-plus-seventy to something reasonable, like say 30 years from composition. Since the public domain is being injured by such unwarranted extensions of 'temporary'.; 6/14/13, 10:02 AM
Sam L. said...: Sorta like copywriting "Mommy" and "Daddy".; 6/14/13, 11:03 AM
Michelle Dulak Thomson said...: Bruce Hayden,

I would still think that the suggestion in the Saturday Evening Post for using the new words with the old melody would be either fixation, or at least put it in the public domain. Probably both. And, yes, you don't have to be the first to create, or the first to register, to get a copyright, but I would think that the copyright claimant would have to show that they were not in receipt of the new lyrics from one of the most popular magazines of the time, putting new lyrics to their own tune in order to show authorship.

And, I am not sure if I understand your point about the registration of the original lyrics along with the tune. Not sure if I see how it matters.

I think you win this one, now that I've rethought it.

My difficulty was that I'm still not sure what copyright in a song entailed around the turn of the 20th century. Would it have been infringement to sing the tune with different words, while the song (original words and music both) fell under copyright?

There was no copyright in the alternative lyrics unless their author registered one, which I doubt. (This wouldn't be true today, but it was at the time.) The copyright in the tune belonged to the Hills until they didn't renew it in 1921.

So: Lyrics: Presumably PD. Music: Under copyright until the Hills let it lapse in 1921, at which point it was also PD. Combining the two PD items, words and music: Not a problem.; 6/14/13, 11:14 AM
Michelle Dulak Thomson said...: SteveBrooklineMA,

These standards used to be more in line. I wonder how the politics has ended up pushing them apart.

Hollywood. Disney specifically, of course. Though copyright terms elsewhere are, while not so long as ours, waaay longer still than our patent terms. There are only a few exceptions to the "plus 50/70" regime for copyright.

(The Wiki article on copyright regimes worldwide is great. Practically everything is "plus 50" or "plus 70," but sometimes it's since the death of the author, and sometimes since the date of publication. Very big difference there. If you're talking about, say, a piece of Stravinsky from the mid-20s, a date-of-publication-plus-50 regime would put it in the PD, as would a date-of-publication-plus-70 regime. A life-plus-50 or life-plus-70 regime, OTOH, would have it still under copyright for a long time. Stravinsky died in 1971.)

And, of course, if you happen to reside in the Marshall Islands, Wiki informs me, you have no copyright, because there's no copyright law.); 6/14/13, 11:33 AM
Steven said...: The biggest problem with copyright law now is the post-facto extensions. And that's never going to be dealt with because of the strategy of the idiots who took the case challenging the 1998 Sonny Bono extension act to court, because they deliberately didn't challenge the previous 1978 extension. Their theory was that limiting the scope would help win the case. The Supreme Court, on the other hand, pointed out that if the plaintiffs conceded the legality of the extensions in 1978, they didn't have a leg to stand on with the argument that the 1998 post-facto extension unconstitutional.

Beyond that, the Supreme Court grants that some length of time becomes effectively non-"limited", but is of the opinion that 95 years/life-plus-70 is still "limited".; 6/14/13, 6:54 PM