Have I mentioned litigation takes a long time? It does, in case you have any doubts. Over two years ago, I wrote about the case filed to determine if the song “Happy Birthday” was in the public domain. Thus, not subject to copyright protection and free for all of us.
There has been discovery. There have been filings. There have been motions to dismiss from both sides. There have been witnesses prepped, testimony taken and experts paid. A surprise piece of evidence was even produced!
As rarely happens, except in Law and Order or Matlock television shows, a smoldering candle, by way of a songbook from 1922, surfaced showing “Good Morning to You and Happy Birthday” song did not strictly comply with the requirements for a valid copyright. Thus, it has possibly been in the public domain this entire time. The New York Times article found HERE details this new discovery.
When “Happy Birthday” was published it was necessary to provide certain notices on the piece in order to have copyright protection. The publication did not have the proper notification of copyright law. Over the past week, many questions have come my way regarding what was necessary then and what is necessary now. How was copyright treated under the 1909 versus now with the 1976 Act?
The Copyright Act of 1909 and the Copyright Act of 1976 share a lot of similarities. However, there are also some differences. One would hope the law would receive improvements with new versions. The turning point in the Happy Birthday case rests on one of those differences.
One big difference is that the Copyright Act of 1909 was stricter in formalities than the Copyright Act of 1976. If someone wanted to have a valid copyright, certain rules needed to be followed. For works published between 1909 and December 31, 1977, in order to have a valid copyright, a copyright notice was necessary.
The notice that was necessary needed to follow the formula of using the ©, Copr. Or Copyright. Following the copyright designation the name of the owner and then the year of first publication. Meaning, if this blog was published back in 1910, in order for me to have copyright protection I would have to place on my blog “© Ryanne Duffie Saucier 1910.” If I failed to do so, then I had no copyright protection and could not claim any of the exclusive rights associated with copyright ownership. Simple and easy to do.
See more, The Magic Wands of Copyright
The legislative history indicates the thought process behind giving notice was that they wanted individuals to assert their rights. Unlike today where copyright exists at the moment of creation with no assertion necessary, those in the past felt like copyright should not apply to unclaimed works. There was this idea that by placing it on your creative work it was functioning to alert the rest of the world that it is protected. Meaning, public domain was the default unless you took the very simple steps of asserting your rights. Said another way, you had to “claim” your copyright. Otherwise, others could use your work.
Another difference between the two acts dealt with renewals. Under the 1909 Act, in order to maintain a valid copyright it was essential to file a renewal certificate during the last year of an initial 28 year term. Once copyright was filed, an owner could assert all rights until the expiration on day 365 of the 28th year. Between year 27 and 28, it was necessary to file a certificate renewing rights. If no certificate was filed, then the work went into the public domain. The 1976 Act did not change this requirement for works published with notice before 1978, but in 1992, Congress made renewal automatic.
Those believing “Happy Birthday” should be in the public domain have always questioned proper renewals. However, until last week there was not any proof that perhaps the strict formalities for copyright assertion were not followed. The lesson for those wanting to use older material is to look and question as to whether the material is possibly in the public domain due to failure to follow the once strict methods to obtain copyright protection. This case continues to be one to watch.
There are some that argue we should return back to those strict compliance rules due to the ever-growing body of orphaned works, those where the copyright owner cannot be located. What do you think about returning to the rules of the 1909 Act? Take part in the Comments section below and Stay Tuned In!
If you liked this post, please share it and click the FREE Subscription button above to get more! Follow me on Twitter where I pass along the latest entertainment law, broadcasting and intellectual property news @RyanneDSaucier.