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"Happy Birthday To You" Now Public Domain
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.
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.
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.
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.
From the ruling:
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).
That's a legal argument that the plaintiffs made. The judge denied that one.
That's correct, the judge denied the argument. However, he argued the argument is denied because the plaintiffs didn't provide evidence that the publication of
Happy Birthday in The Everyday Song Book in 1922 was authorized.
He didn't argue that it was denied because the publication was only done by a licensee, like you say.
If you published an authorized work under the Copyright Act of 1909, and missed a copyright mark, the work would become public domain. From the ruling (some quotes removed):
Under the Copyright Act of 1909, one secured a federal copyright by publishing a
work with proper notice. Before such publication, the work was protected by common
law copyright. If the work was published without notice, two things happened: the
author (1) failed to obtain a federal copyright and (2) lost the common law copyright as
well.
General publication, which would cause a forfeiture, occurs “when, by consent of
the copyright owner, the original or tangible copies of a work are sold, leased, loaned,
given away, or otherwise made available to the general public, or when an authorized
offer is made to dispose of the work in any such manner, even if a sale or other such
disposition does not in fact occur.” 1 Nimmer 4.03. By contrast, a limited publication,
which does not cause a forfeiture, is when “tangible copies of the work are distributed
both (1) to a ‘definitely selected group,’ and (2) for a limited purpose, without the right of
further reproduction, distribution or sale.” Acad. of Motion Picture Arts & Scis., 944 F.2d
at 1452. Moreover, “mere performance or exhibition of a work does not constitute a
[general] publication of that work.” Am. Vitagraph, Inc. v. Levy, 659 F.2d 1023, 1027
(9th Cir. 1981).
The judge even said that this would apply for the 1922 publication:
If the [1922] publication was authorized, that could
make it a general publication (without proper copyright notice), divesting the Hill sisters
of their common law copyright.
But later on, he sais:
As Defendants [Time Warner] point out, there is no direct evidence
that the Hill sisters had authorized Summy Co. to grant permission for the publication of
the lyrics in The Everyday Song Book.
And concludes:
Plaintiffs cannot satisfy their initial burden under Rule 56. Accordingly,
Plaintiffs’ Motion is DENIED as to this issue.
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.
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. Unfortunately, some of the documentation was never submitted as part of the copyright claim because it proved that the company had no legal grounds to the copyright.
As part of the case Warner/Chappell Music had to show all the information they had, which included the unfilled documents. The music was actually from another song dating older than the lyrics. The suspected origin of the lyrics, at least the first written account, put it out of its maximum copyright period in 2005.
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.
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?