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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.

23 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 jones_supa · · Score: 2, Insightful

      Disney invented Mickey and still actively uses the character in the company's productions. It's fair that Disney retains copyright to Mickey Mouse.

    2. 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.

    3. Re:Mickey Mouse copyirght extenstions... by Anonymous Coward · · Score: 5, Interesting

      Whether or not a copyright is used is irrelevant. You're thinking trademarks where they are granted for the context permanently as long as they remain used and defended.

      Copyrights are explicitly intended to be for a limited time and for most of American history that limited time was well within the lifespan of an average person. Until relatively recently the only way to obtain a copyright was to explicitly submit the material to the Library of Congress for certification at which point you were granted a 14 year exclusive use. You could apply for an additional 14 year grant but after 28 years the material would be forced to fall into the Public Domain and permanently accessible from the Library of Congress. You had those maximum of 28 years to make as much return on your investment as possible, but you were expected to then reinvest that return into new ventures. It was never intended that an entity could squat on the material indefinitely regardless of whether they continued to make money on it as much of the purpose was to incentivize the creation of new material through the very loss of that monopoly.

      The current form of copyright in the US is a perversion of that intention. Aside from the near indefinite monopoly status due to extensions granted to the Disney lobby there is also no requirement to submit the material to an archive. Works are simultaneously locked up permanently as well as lost forever. As with Disney an entity can create one work and rest on their laurels effectively eternally and never have to invest in new art forms. What's worse is that because of Disney everything else not explicitly put into the Public Domain is just as lost, regardless of whether or not anyone is still actively creating new works with it.

    4. Re: Mickey Mouse copyirght extenstions... by bohmt · · Score: 2

      You have that backwards. Exclusive right to a work is not a god given right, it's given by society as incentive to create something new. As such society limits it to something reasonable ( in theory ) so that new works can be created.

    5. 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.

    6. Re:Mickey Mouse copyirght extenstions... by Austerity+Empowers · · Score: 2

      Because copyright is a human invention designed to encourage creative work by protecting what is otherwise easily copied and transferred around. That copyright protects the creator from unauthorized reproduction of his creation for a long enough period of time to allow him to recapture his investment. Once that period of time ends, he no longer has such protections and whether he likes it or not, his goods become public domain. He has plenty of time to both enjoy profit from his creation, and time to create something new which could subsequently be protected for another period of time.

      It was never intended to grant a creator indefinite immunity from reproduction of his creation. Very few individuals would either a) care to have their tax money spent defending greed, or b) be held hostage to someone who wants to rest on his laurels and have his publicly granted copyright used to allow him to become useless to society indefinitely. What we giveth as a society, we also taketh away, copyrights and patents are two such things.

    7. Re:Mickey Mouse copyirght extenstions... by Opportunist · · Score: 4, Insightful

      And that's exactly where the current form of copyright not only fails to address its original purpose but actually works against its purpose.

      The purpose was to give people an incentive to create works of art by giving them an monetary incentive to do so. If you can monopolize something great for a time (instead of fearing that whatever you create immediately being copied by anyone, rendering your work worthless), you have an incentive to create something great and reap the rewards of your work. That's fine.

      Now, last thing I heard about "happy birthday" was that it makes 5 grand a DAY for Warner. Now, imagine you made "happy birthday". And got 5 grand a day from it. Where the fuck is your incentive to EVER create anything again? 5 grand a day? Fuck, I couldn't be assed to do anything but sit there and rake in the money for the rest of my life. Why bother work ever again if you already get more money than you can sensibly spend without doing anything?

      --
      We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
    8. Re:Mickey Mouse copyirght extenstions... by paiute · · Score: 2

      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.

      The above is otherwise known as the copyright clause of the US Constitution. Copyrights were not intended to be infinite. What you are thinking of are trademarks.

      1000 years is still a "limited Time"

      --
      If Slashdot were chemistry it would look like this:Cadaverine
    9. Re:Mickey Mouse copyirght extenstions... by spire3661 · · Score: 2

      Exactly. There needs to be 'cultural ubiquity' limits like with trademarks. Happy Birthday is a cultural artifact and its copyright should be rescinded due to ubiquity and cultural importance. At least that is a system i would like to see put in place.

      --
      Good-bye
    10. Re:Mickey Mouse copyirght extenstions... by Insanity+Defense · · Score: 2

      Take it up with Disney for all the OUT OF COPYRIGHT works they plagiarized in making movies. They have benefitted greatly by the public domain but refuse to add to it.

    11. Re:Mickey Mouse copyirght extenstions... by calidoscope · · Score: 2

      I'd modify the proposal for copyright to be free for 14 years, 5% gross royalties from 15 to 28 years, 10% gross royalties from 29 to 56 years, then 25% gross royalties after that.

      --
      A Shadeless room is a brighter room.
    12. 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.
    13. Re:Mickey Mouse copyirght extenstions... by cpt+kangarooski · · Score: 2

      Until relatively recently the only way to obtain a copyright was to explicitly submit the material to the Library of Congress for certification at which point you were granted a 14 year exclusive use. You could apply for an additional 14 year grant but after 28 years the material would be forced to fall into the Public Domain and permanently accessible from the Library of Congress. You had those maximum of 28 years to make as much return on your investment as possible, but you were expected to then reinvest that return into new ventures.

      "Relatively recently?" What are you, a highlander?

      The 14+14 term you describe lasted from 1790 to 1831. Then it became 28+14. And in 1909, it became 28+28. That's the term that changed relatively recently, in 1978, to life + 70, etc.

      Still, kudos on the general thrust of your argument.

      --
      -- 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. Pigs might fly first by Dunbal · · Score: 4, Funny

    I'm guessing Time Warner is going to be giving all those royalties back?

    --
    Seven puppies were harmed during the making of this post.
    1. Re:Pigs might fly first by nbauman · · Score: 5, Interesting

      I'm guessing Time Warner is going to be giving all those royalties back?

      That's what Good Morning to You Productions is demanding in the lawsuit.

      When one of the parties commits fraud upon the court, which is what it looks like they did in the discovery or non-discovery of that 1927 songbook, https://www.techdirt.com/artic... judges can get very angry.

      They've been knowingly demanding and collecting all that money under false pretenses. That's a little worse than downloading a few mp3s.

      The judicial system is so arbitrary and corrupt that anything could happen. But sometimes, once in a while, it actually produces justice.

    2. Re:Pigs might fly first by AthanasiusKircher · · Score: 2

      I'm guessing Time Warner is going to be giving all those royalties back?

      That's what Good Morning to You Productions is demanding in the lawsuit.

      I know this would never happen, but the damages here should have to go further than just returning the money. How many movies and TV shows over the years have been forced to not film a birthday scene to avoid royalties? How many people have been deprived of the standard birthday song at a restaurant or other public celebration, because the staff was not licensed for public performance?

      Birthdays are important events. Movies and films often have scenes that want to show such events. Time Warner has deliberately impeded the "progress of the arts" which was the entire point of the Constitution by artificially limiting the production of such scenes in films and movies.

      Every filmmaker who has ever filmed a birthday scene without the song or who had a birthday scene in a script by cut it because of royalty concerns should join in a class-action lawsuit and seek damages. Every person who wanted to hear "Happy Birthday" at a restaurant but got some crappy weird song from the waitstaff should sue them for damages. I imagine the cumulative amount, with damages, should come to billions, if not trillions, of dollars.

      Only then will justice truly have been done. Only then will we begin to turn the tide against copyright trolls and those who would falsely claim copyright.

  3. 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.

  4. Old news by ArchieBunker · · Score: 2, Insightful

    Read about this like 5 days ago. Anything else you guys want to present as "news". Perhaps the death of Jimmy Hendrix or that new Godfather II movie?

    --
    Only the State obtains its revenue by coercion. - Murray Rothbard
  5. Warner may let this one go by fustakrakich · · Score: 2

    Maybe finally, there is a noticeable public backlash against indefinite copyright, and they are doing this to pacify that. The trick usually works.

    --
    “He’s not deformed, he’s just drunk!”
  6. I think ... by PPH · · Score: 2

    ... we should all switch to the Beatles version of Happy Birthday. Apple Records needs all the support it can get defending its copyrights and trademarks.

    --
    Have gnu, will travel.
  7. Mickey Mouse copyright extenstions... by coats · · Score: 4, Insightful
    It is not fair.

    Neither is it fair that Disney stole Osamu Tezuka's Kimba for use in The Lion King.

    The Constitutional requirement is: (1) to authors and inventors, (2) for a limited time, (3) in order to promote progress in the sciences and arts.

    It is impossible that extending the copyright term for works of a fifty-year-dead author can encourage him to produce more work. Nor is the resulting term "limited" in either in mathematical or human terms. And the current Mickey Mouse "copyright owners" are certainly NOT that author nor inventor.

    --
    "My opinions are my own, and I've got *lots* of them!"
  8. 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.