Robert Brauneis, Guest-Blogging:

I'm delighted to report that Prof. Robert Brauneis (of the George Washington University Law School) will be guest-blogging this week, about Happy Birthday to You. Brauneis teaches copyright, trademark and property law at GW, and is co-director of GW's intellectual property program, and during his visit here he will focus on his article, Copyright and the World's Most Popular Song. Brauneis writes:

My curiosity about [Happy Birthday to You] was originally piqued by Justice Breyer's comment in his Eldred v. Ashcroft dissent that the song was "copyrighted after litigation in 1935." Since registration has always been a prerequisite for federal copyright litigation, how could the song have been copyrighted after litigation? I eventually came to the answer to that question (the litigation was about the song's melody, and the combination of melody and words was allegedly first published with notice after the complaint was filed). But by then I was hooked. My inquiries ended up leading me to archives in New York, Chicago, Louisville, and Eugene, Oregon.

The historical thesis of the article is that two pieces of received wisdom about the song -- that it is basically an unoriginal folk song, and that it is still under copyright -- are both wrong. That leads me to suggest that there are some dangers in using anecdotes in policy arguments. It also leads me to argue that the collective action problems involved in challenging copyright validity can be quite serious: "Happy Birthday to You" makes an estimated $2 million per year, yet in spite of serious weaknesses in the copyright, no one has ever challenged it, and it is likely that no one ever will.

Finally, I make some specific suggestions. I argue that as the term of copyright lengthens, there is good reason for incorporating an adverse-possession-like doctrine in copyright law, to clear title and to protect expectations that have arisen during a long period of copyright-holder inaction. I also argue that the Copyright Office should institute better recordkeeping policies, because many of the records relevant to determining copyright issues about older works are now lost or discarded.

I much look forward to Prof. Brauneis' posts.