We are finally starting to see a few glimpses of fall here in Mississippi, by way of the changing leaves and cooler temperatures in the morning. Fall means gourds, colorful leaves, and holiday cornucopias. This past week brought to mind several copyright issues – a cornucopia of copyright.
My social media feeds have billowed news about the recent decision with Happy Birthday. I also received several messages inquiring about Ryan Adams’s ability to re-record Taylor Swift’s album in its entirety. Both topics are timely, so I decided to give you all my version of a holiday cornucopia by way of copyright law.
Happy Birthday Decision
Earlier this week a federal judge ruled Warner/Chappell Music did not have a valid copyright in the song Happy Birthday, thus could not claim to rights in the song. The judge decided the copyright filed in 1935 only granted rights to a specific piano arrangement, but not the song lyrics. Warner/Chappell contended the 1935 copyright filed granted them rights in the lyrics to Happy Birthday.
This case was over the actual song lyrics, but not the music. Music and lyrics is not just a romantic-comedy film featuring Hugh Grant and Drew Barrymore, but in copyright law are two legally distinct parts to a song. Each receive protection separately and when used together. Both parties agreed the music, which was borrowed from Good Morning to You, fell into the public domain many years. As the opinion pointed out, what was in dispute was the lyrics to Happy Birthday and not the music.
The Judge ruled there was never any steps taken to protect the lyrics. As the case stated, “They did not try to obtain federal copyright protection. They did not take legal action to prevent the use of the lyrics by others, even as Happy Birthday became very popular and commercially valuable.”
While this is a victory, the ruling does not specifically state the case is in the public domain, making it free for everyone to use. Warner/Chappell stated to several news outlets they were looking at their options. While it seems the candles might be blown out on this issue, there is always the possibility for appeal. The amount of money received each year for licensing the song might spur that strong consideration.
For earlier posts on the “Happy Birthday” case, read my earlier posts Blowing Out the Candles on the “Happy Birthday” Dispute and Happy Day for Good Morning to You Productions.
Re-Inventing Taylor Swift’s Music
Taylor Swift is someone everyone loves to hate. However, this week, all the haters and the dirty dirty cheats rejoiced when Ryan Adams released Taylor’s entire 1989 album with his version of the album. Hipsters rejoiced. Taylor released statements saying she was thrilled. Adams’s version even found its way on to the music streaming service Spotify. You’ll remember Spotify was the music streaming service Taylor refused to allow her 1989 album to play on. All seemed right in the music world.
So, how was Ryan able to re-record the album in its entirety and why would Taylor now be happy about the songs being played on Spotify? It’s because of a little thing I like to call mailbox money and copyright law’s compulsory licensing scheme.
Once a musical work (the sheet music and lyrics) has been published, publicly distributed, then the re-recording of the song is subject to compulsory licensing under Section 115 of the 1976 Copyright Act. Meaning, if a song (regardless of its popularity) is published for public consumption, then any person can record their own version of the song, provided they follow the other requirements of obtaining a mechanical license and paying the necessary fees. There is nothing the holder of the musical work copyright can do to stop them from doing so.
The licensing is “compulsory,” which means the original writer of the song cannot stop others from recording the music, with a few limitations. It is important to note that why they cannot stop you, you must still comply with copyright law by obtaining a mechanical license to record your version of the song, give the proper notices, pay the licensing fees and not alter the song too much. Mechanical rights for most songs are administered thru the Harry Fox Agency. You can find out more about obtaining mechanical licensing by going HERE.
What this means for Ryan Adams and Taylor Swift is that even if Taylor did not endorse Adams’s recording there is nothing she could do to stop him. From a strictly business standpoint, Taylor should not want to stop Ryan Adams either and should laud his activities. A quick search of the songwriters and publishers of Taylor’s 1989 album reveals she is the songwriter and retains the publishing rights to most of the songs on the album. Meaning, once Adams put in place the mechanical license and paid the fees, Taylor will start receiving mailbox money. You know, you just walk out to the mailbox and there is a check in there.
While Taylor is being nice about the rerecording, she really has no reason to not be nice. Every time the music is played she is receiving money. Every time the album is sold she is receiving money. Every time the songs are streamed she is receiving money. It pays to be the songwriter and keep some of the publishing rights. Taylor has no reason but to be happy because there is no bad blood when you are continuously profiting from your creative work, even if others are using it.
Tune In Alert – I will be on Mississippi Public Broadcasting’s In Legal Terms this upcoming Tuesday, September 29 at 10:00 a.m., CST. You can anywhere in the world by streaming live at www.mpbonline.org, downloading the app “MS Public Broadcasting,” or listening to the recording on the website later in the day.
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