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"Happy Birthday" Public Domain After All?

Posted by timothy on from the casual-dining-employees-rejoice dept.

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.

6 of 183 comments (clear)

  1. Mickey Mouse copyirght extenstions... by The+New+Guy+2.0 · · Score: 4, Informative

    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.

    1. Re:Mickey Mouse copyirght extenstions... by Anonymous Coward · · Score: 5, Informative

      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.

    2. Re:Mickey Mouse copyirght extenstions... by Duckman5 · · Score: 4, Informative

      Hundreds of cartoon characters were created in the early and mid 1900s. Only a few became successful and one of them was Mickey. Why should Disney make that asset available free to the public because the luck, creative and technical skills in pulling off a creative masterpiece is a lot? Why do creators of copyrighted work owe free stuff to the public? Do members of the public mail at least one dollar bill per year to failed artists? No. But artists are supposed to be charitable to the public somehow.

      So end this scam called limited times for copyrighted work. Disney and M. Mouse were valuable a few decades ago, are valuable today and will remain valuable a 100 years from today.

      I really hope that's sarcasm. I can't really tell. Sorry, but it just doesn't read well in print without some kind of sarcasm tag or a whole lot of exclamation points or something to indicate it.

      In the event that it's not, you do realize how stupid, ignorant, and deluded you are, right? The text of the constitution that authorizes copyright reads:

      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;

      Notice the parts about promotion and limited that I highlighted? Yeah...copyright is a contract between the public and the artist. They get to make something, profit from it for a while, then we get to make something new out of it or just make it part of our culture and share it with others all we want. The current state of copyright has perverted that.

    3. Re:Mickey Mouse copyirght extenstions... by cpt+kangarooski · · Score: 3, Informative

      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.

      --
      -- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
  2. Life+50 years Life +70 years by Anonymous Coward · · Score: 5, Informative

    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.

  3. crappy summary by SpammersAreScum · · Score: 4, Informative

    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.