You probably heard that a lawsuit was filed last week to declare the song Happy Birthday part of the public domain. This would allow the song to be free for public consumption without paying fees to any rights holder or seeking any type of permission. The song first appeared “sometime before 1893” and to think that it would still be subject to Copyright protection, and limitations, baffles the everyday person. It strikes me as more than ironic that the claim filed pivots around when the song Happy Birthday was “born.”
The crux of the claim states that the copyright Warner/Chappell claims they own is in error. News stories about this suit immediately abounded from NPR’s Marketplace to CNN to MSNBC to everyone in between. Those news organizations did a great job at summarizing the filing for the case. Click on the links to read any of those stories.
The biggest question I received since the filing last week is this – What took so long to bring a suit to decide what party, if any, owns the rights to Happy Birthday? The complaint, found here, offered technical insight.
To say that the ownership question is fuzzy would be an understatement. First, the rights were held by many companies that were created and dissolved from “sometime prior to 1893” until Warner/Chappell acquired the rights around 1998. Second, the song that we all know and love was based on an earlier tune titled Good Morning to All. Also, the lyrics we now sing with the pre-existing tune was only first published in 1911. The complaint also suggests that the song in its entirety, meaning music AND lyrics married into one place, did not occur until a printing in 1924.
Probably the largest deterrent to earlier cases being filed was defendant Warner/Chappell music. I do not want to downplay the significance of that piece of the puzzle. They are one of the largest music rights holders in the world with smart intellectual property attorneys on staff. Because there is such a big question mark surrounding ownership, maybe Warner/Chappell would be the victor. A film studio might have to pay $10,000 or more for the fifteen-second piece of the song, but that is much less than costly litigation. I think it becomes easy to see that a copyright legal quagmire exists that the most advanced copyright attorneys would not touch with a ten-foot pole!
I know what you’re thinking. Why can’t the U.S. Copyright Office step-in, make an assessment and decide ownership? The answer to that question is based upon the structure of the United States Copyright Office’s registration system.
The Copyright Office generally allows registration unless it is clear from the face of the registration materials that the items are not subject to copyright registration. For example, I send in a copyright registration for my newest novel titled Revenge Wears Prada along with the required two copies of the best edition of my work. My best edition happens to be the current New York Times Best Seller and follow-up to the Devil Wears Prada. An examining officer would clearly see that I was trying to file a copyright fraudulently on something that was not original to me and would deny registration. In practical terms, very few things are refused registration by the Copyright Office. The Copyright Office’s role is merely one of registration. Litigating ownership is the only mechanism available if a dispute exists about ownership. *NOTE* This may change in the future as there are current talks about overhauling the entire Copyright statute. There are some that advocate expansion of the role that the Copyright Office plays. For more on this line of thought, visit The Copyright Principles Project.
Who wins if it is determined that Warner/Chappell music group was not the rightful owner? For years they controlled how Happy Birthday has been performed, charging hefty fees for the right to do so and hitting unknowing offenders without permission with fines. I would argue that Jennifer Nelson and the rest of the filmmaking team, regardless of the outcome of the case, are the winners. I discussed in a earlier post, Hollywood Celebrities in Books, about weighing the risk of a lawsuit, what a lawsuit could mean to your next project and how litigation may effect the bottom line to your project. There is no doubt that the documentary in question has already received a great deal of press. That buzz may translate into distribution by a major studio, bottoms in theaters and turn it into a very happy day for Good Morning to You Productions.
What do you think? Is the copyright term too long? What about materials where ownership is questionable? Should there be a better system outside of litigating to determine ownership?
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