pageok
pageok
pageok
[Robert Brauneis, guest-blogging, April 28, 2008 at 4:16pm] Trackbacks
"Happy Birthday" I: The Half-Full Cup of Copyright.

My thanks to Eugene for the opportunity to address the Volokh Conspiracy audience and get some feedback on my article "Copyright and the World's Most Popular Song."

Supporters of copyright will no doubt like some of the things I have to say in the piece; questioners will like others. I'm going to start off with an aspect of the piece that's relatively pro-copyright.

The melody of "Happy Birthday to You" is quite simple and folksy. No one would confuse it with a song by Schubert or Cole Porter. Thus, one might think that it was probably created by the accretion of incremental contributions so small that none of them would qualify for copyright protection. One might also think that copyright protection wasn't needed to motivate its composition or dissemination, and that, in any event, it is not the kind of sophisticated music that copyright is really meant to promote.

What I have learned about the history of "Happy Birthday to You" has led me to question all of those thoughts. The melody of that song -- originally published with different words as "Good Morning to All" -- was the product of an intensely focused and extended creative process. Patty Smith Hill and Mildred Jane Hill, the two sisters who composed it, started with a specific goal in mind. They wanted a melody that could be easily sung and remembered by kindergarten students, yet would also have an emotional punch.

Because Patty was the principal of a kindergarten, the Hill sisters had a laboratory in which they could test melodies. And that's what they did. They would compose a song; bring it into the kindergarten; see how easily and enthusiastically the children would learn and sing it; and then go home in the evening, make changes, and bring the next draft into the kindergarten the following morning.

Out of many such rounds of testing came the "Happy Birthday to You" melody. It turns out that it's a melody that not only children but also adults with little musical talent can remember and sing a few times a year, building to that satisfying catharsis of the high note in the song's third line, celebrating a milestone of life.

The Hill sisters did not invent the melodic, harmonic, or rhythmic vocabulary they were using. But as far as I can tell, they were not just tweaking an existing melody either. Moreover, though they were not professional composers, they were quite aware of copyright. Patty told the kindergarten teachers that they could sing the song all they wanted, but that they should not write it down, because that would endanger copyright protection. (At the time, publishing a work before registering it with the Copyright Office would forfeit copyright.)

Where does this all lead? First, even simple melodies don't necessarily spring up without people devoting time and care to them. Many "folk songs" likely have authors whose identity has just been lost to our collective memory. Second, even nonprofessional composers who aren't seeking to get rich from a song may desire copyright protection, because they understand that it is important to publishers who invest in disseminating that song.

Finally, lowbrow domestic music may be worth promoting with copyright protection just as much as highbrow concert hall music. As much as I love Schubert and Cole Porter, I'm willing to concede that their entire output has probably not contributed as much to the happiness of humanity as a simple song by two unknowns, as sung in groups large and small by millions of people around the world every day.

David Schleicher (mail):
Interesting article. One interesting pop culture anecdote related to the topic: There is an episode of Aaron Sorkin's first show, "Sports Night," in which a sports anchor (played by the great Josh Charles), is warned by his network that the network faced legal liability for singing "Happy Birthday" on the air.
4.28.2008 5:34pm
Randy R. (mail):
What's the difference between 'low brow' music and 'high'?
4.28.2008 5:41pm
alias:

Where does this all lead? First, even simple melodies don't necessarily spring up without people devoting time and care to them
Maybe not necessarily, but it's still questionable how much one can generalize from the Happy Birthday story, no?
4.28.2008 5:42pm
Scote (mail):
...and yet their creation of the melody had nothing to do with the ridiculously long, retroactively granted copyright terms we have to day.

Happy Birthday should have passed into our culture years ago, rather than remain a a monopoly for neigh unto eternity. Same goes for the ABC song, which is also still copyright.

We need to return to an "originalist" copyright term, not this near infinite monopoly which does nothing to advance the useful arts and sciences.
4.28.2008 5:43pm
Rich B. (mail):
It is unclear what the happy story of two teachers who wrote a song called "Good Morning To All" has to do with the song "Happy Birthday To You," which shares only the tune and the word "to you" with the original, was copyrighted by an unrelated company in 1935, and has a copyright that extends into 2030.

Your little story is the equivalent of defending Disney's copyright on the Cinderella movie by describing the history of the Grimm Brothers as they wrote and edited their fairy tales.
4.28.2008 5:54pm
KevinM:
I always liked the story producer and "5th Beatle" George Martin told about doing the copyright clearances for "All You Need Is Love." The task was more complex than many, because the boys had thrown in many little melodic quotations, including their own "She Loves You" and Judy Garland's "In the Mood." Martin ascertained that the latter was out of copyright, but goofed: the horn riff was not from the original composition, but from the later Glen Miller arrangement, still under copyright. He recognized his mistake only after the record had been released (and the record, of course, was a recording of live, worldwide telecast). I imagine that today the copyright holder would have taken them to the cleaners, but perhaps times were gentler. Martin called up the copyright holders, pleaded a good-faith mistake, and they let him off the hook.
4.28.2008 5:56pm
factory123 (www):
By constantly testing out new melodies on the children, don't the kids become partial authors of the final work? They are like a composing partner. The adults bounce ideas off of them and take their feedback. The children's input determines whether particular phrases are kept or rejected.

I could easily imagine the following situation: an awkward phrase is composed and then taught to the children. The children can't quite master the phrase and sing it incorrectly. The incorrect reading is simpler and catchier, and is included in the next version of the song. The kids' phrase remains in the final composition. Are the children then partial authors of the song?
4.28.2008 5:59pm
Turk Turon (mail):
As someone in the television business, I have always been told by producers that the WORDS to "Happy Birthday" are copyrighted, but the MELODY is not. So using the music (without lyrics) in a broadcast doesn't violate copyright. True?
4.28.2008 6:00pm
swg:
I found this pretty interesting-

one might think that it was probably created by the accretion of incremental contributions so small that none of them would qualify for copyright protection.

I don't think I've ever heard of music being composed this way. Does it happen frequently? I'd think not. I can't even really fathom how it would work. How does the initial contribution have any staying power if its just incremental? How does an incremental contribution stick, such that other people can build onto it? Maybe I'm missing something obvious.
4.28.2008 6:01pm
Fub:
Many "folk songs" likely have authors whose identity has just been lost to our collective memory.
And many songs by known composers are sometimes misidentified as "folk songs". I've heard Stephen Foster songs (both lyrics and music) misidentified that way.

Once several different lyrics are set to a melody, whether by "folk" or by identifiable individuals, the mystery of original composition deepens. The songs "Joe Bowers", "I am a good ole rebel" and "Flora, the lily of the West" are one example of the same melody with differing lyrics, attributed variously to "folk" or specific lyricists.
4.28.2008 6:08pm
SupremacyClaus (mail) (www):
If the term were 10 years, would one get more or fewer such songs than if the term were 100 years?
4.28.2008 6:10pm
Roger Schlafly (www):
So how do you know that the final version of the melody was not created by a kindergarten kid? Why should these sisters get all the credit when kinder kids may have contributed just as much?
4.28.2008 6:13pm
matt (mail):
When I'm elected emperor-for-life, I will modify copyright laws thusly:
Copyright monopoly is 20 years.

Copyright may be extended another 10 years. Each time it's extended, the fee doubles.
One-year grace period on forgot-to-renew, after which it's public domain.

Because even emperors-for-life have to have standards, copyright law will remain constitutional in the US by cutting off further extensions after 200 years.

Why I like this:
the exponential growth in fees guarantee that everything will eventually go public-domain, as soon as it's not producing enough money to justify the fees.

It doesn't bother me that Mickey Mouse is on practically-perpetual copyright; Disney's still using it and it's still driving wealth creation.

What does bother me is the fact that literally millions of marginal works, which no longer provide any significant economic benefit to the author, the author's heirs, or anyone else, never go into the public domain either.

-m@
4.28.2008 6:15pm
JDS:
I call your attention to this pithy comment on this subject.
4.28.2008 6:16pm
CDU (mail) (www):
It is unclear what the happy story of two teachers who wrote a song called "Good Morning To All" has to do with the song "Happy Birthday To You," which shares only the tune and the word "to you" with the original, was copyrighted by an unrelated company in 1935, and has a copyright that extends into 2030.

Your little story is the equivalent of defending Disney's copyright on the Cinderella movie by describing the history of the Grimm Brothers as they wrote and edited their fairy tales.


Notice the title of this post is:
"Happy Birthday" I

I don't think I'm going out on a limb in predicting that a "Happy Birthday" II is coming somewhere down the pike that will deal with the lyrics. Have a little patience.
4.28.2008 6:16pm
Jiffy:

Same goes for the ABC song, which is also still copyright.


If so, it shows how inaccurate my assumptions are about the original contribution necessary to copyright something. The melody is by Mozart and the lyrics are, well, the alphabet. I guess it must be the last two lines.
4.28.2008 6:18pm
hattio1:
swg;
Think of folk songs or fiddle tunes. Different people, untrained in music mis-remember the melody, or just decide they like it better "their" way. Variations get spread, pick up new melodic changes, etc. This is the standard story for how "folk" music originates. Frankly, I doubt it's very accurate for the vast majority of folk music and fiddle tunes, but that's the common idea and is definitely true of a lot of tunes.
4.28.2008 6:21pm
Fred Beukema (mail) (www):
it shows how inaccurate my assumptions are about the original contribution necessary to copyright something. The melody is by Mozart and the lyrics are, well, the alphabet. I guess it must be the last two lines.


The melody is actually a French tune called "Ah, vous dirai-je, maman" which is also the basis for "Twinkle, Twinkle, Little Star". The ABC Song was first coprighted in the US in 1835, according to Wikipedia, so even the efforts of Disney, Warner, and the late Sonny Bono shouldn't have kept that one out of the public domain. Near as I can tell, it isn't, in fact, still under copyright protection.
4.28.2008 6:24pm
Wayne Jarvis:

If so, it shows how inaccurate my assumptions are about the original contribution necessary to copyright something. The melody is by Mozart and the lyrics are, well, the alphabet. I guess it must be the last two lines.


This reminds me of The Onion story about Microsoft patenting 1s and 0s.
4.28.2008 6:28pm
Duffy Pratt (mail):
Bingo on "Ah, vous dirai-je, maman" Mozart wrote a set of variations on the melody, but did not write the melody itself. One of Bach's sons also wrote a nice set of variations on this song.

As for All You Need is Love, if the horn part you are talking about if from the beginning, then its not from Glenn Miller. Rather, it is a quote of the opening of La Marseillaise, the French National Anthem. If its some other horn part in the song, then I'm not remembering it.
4.28.2008 6:35pm
Scote (mail):

The melody is actually a French tune called "Ah, vous dirai-je, maman" which is also the basis for "Twinkle, Twinkle, Little Star". The ABC Song was first coprighted in the US in 1835, according to Wikipedia, so even the efforts of Disney, Warner, and the late Sonny Bono shouldn't have kept that one out of the public domain. Near as I can tell, it isn't, in fact, still under copyright protection.


It is possible that I have misremembered. I have a recollection of Hooked on Phonics getting a cease and desist for using the first notes of the ABC song in their ads--and Google spider's so fast that **my post** comes up when I try and check on it. :-p
4.28.2008 6:37pm
Earnest Iconoclast (mail) (www):
The song was composed in 1983 and the lyrics were published in 1924 (by someone else). In 1933, the Hill sisters siezed the copyright for the new lyrics, which were officially published and copyrighted in 1935.

So the Hill sisters didn't even write the "Happy Birthday" lyrics but took the copyright from the author because it was similiar to their song. And the Happy Birthday song is still in copyright 73 years later. The Hill sisters are all dead and no doubt no longer have an incentive to create more works even though the song is still under copyright.

I have no problem with the concept of copyright... just with the absurdly long term and the broadness of "derivative works." In patent law, a modification to a patent can be patented by someone else... but a license from both is required to actually make the modified device. The original patent holder can't just take the patented modification. So innovation is rewarded even if it's based on someone else's work.

In copyright, innovative modifications to original works are punished.
4.28.2008 6:37pm
Bill Poser (mail) (www):

The Hill sisters are all dead and no doubt no longer have an incentive to create more works even though the song is still under copyright.

Please don't ask the Supreme Court to decide on the question of whether there is life after death. :)
4.28.2008 6:44pm
swg:
hattio1: That sounds right, but in all those cases there's a basic melody or structure on which to build the variations, and for which copyright protection could very likely have been sought (right?). I thought RB's argument went something like this: people may think that songs like "Happy Birthday" can emerge when there was never any copyrightable work in the first place (but just a bunch of "incremental contributions so small that none of them would qualify for copyright protection"), when in fact even songs like Happy Birthday require significant production costs and therefore deserve copyright protection. But this seems to me like a straw man, because I can't imagine a situation where a work would just emerge as a product of a bunch of non-copyrightable contributions.

It's a really small point, though.
4.28.2008 6:45pm
M. Prins (mail):
Regarding the children as "co-composers": What they're really acting as in this scenario is editors, giving implicit feedback on whether or not a musical piece is successful. I work part-time as a composer, and at no point has any editor -- regardless of how many changes we may work through together -- ask for credit as a co-composer or something similar. I can imagine a situation where some form of substantial credit might be necessary, but it's not in the "Good Morning to All" story.

E. Iconoclast: "In patent law, a modification to a patent can be patented by someone else... but a license from both is required to actually make the modified device. The original patent holder can't just take the patented modification. So innovation is rewarded even if it's based on someone else's work." Similar things happen with copyrighted materials, but it's just generally done via contracts instead of through the law.

For example. I wanted to compose a sheet music arrangement of the Beach Boys "Good Vibrations" for a specific instrument completely unrelated to the original (handbells). I wrote to the copyright holder, who allowed me to arrange it for my own purposes (i.e. not for sale) for a very nominal fee ($25, I believe). After I found a publisher who was interested in publishing it, that publisher went into talks with the copyright holder, they came to an agreement, and then the publisher came to an agreement with me. The end result is almost exactly the same as in the patent scenario: A new work is created based on an old work, and everyone involved has to agree before the new work can be sold.
4.28.2008 7:20pm
Jiffy:

Bingo on "Ah, vous dirai-je, maman" Mozart wrote a set of variations on the melody, but did not write the melody itself. One of Bach's sons also wrote a nice set of variations on this song.


Interesting. 18th Century sampling, I guess.
4.28.2008 7:21pm
Elliot Reed (mail):
So what? A song written in 1893 and rearranged in 1935 shouldn't still be in copyright. It certainly shouldn't have a de facto perpetual term. And should singing "Happy Birthday" for private financial gain be a federal crime?
4.28.2008 7:23pm
Warmongering Lunatic:
Turk Turon --

The melody of Good Morning to All is now in the public domain, because Good Morning to All as a whole is in the public domain, Good Morning to All's copyright having managed to expire before Congress figured out it could create eternal copyrights on the installment plan.

The copyright of the derivative work Happy Birthday of course, hadn't expired before Congress discovered that ability, and so the work will never enter the public domain, as additional twenty-year extensions are passed in 2018, 2038, 2058, 2078, 2098 . . . . 3558 . . . 10000000018 . . .
4.28.2008 7:32pm
Adam J:
matt - didn't Professor Lessig already come up with a similar idea for a copyright term along those lines? Careful, your idea for a more efficient copyright term might already be copyrighted...
4.28.2008 7:37pm
stunned:
@ Randy R.: I think the distinction is basically a false one as well (at least, I assume you were implying that point). However, there are enough people whose job it is to separate the high from the low -- and enough other people who listen to them and make corresponding value judgments -- that it's a helpful enough shorthand to talk about when relevant.

Regardless, I'm curious why professor Brauneis brings up the effort required to compose the song since that's both an under- and over-inclusive way to determine what's covered by the copyright law.
4.28.2008 8:28pm
Jazz Fan:
Joe Garland wrote In the Mood, not Judy Garland.

From Wikipedia
4.28.2008 8:35pm
ReaderY:
"I wouldn't give a fig for the simplicity this side of complexity. I would give my right arm for the simplicity on the other side of complexity."

Copyright protection was intended to protect innovation, not of that which is complex, but of that which is valuable.
4.28.2008 9:16pm
Fub:
Jiffy wrote at 4.28.2008 6:21pm:
Interesting. 18th Century sampling, I guess.
Many musical themes or melodies have been basis for derivative works (of which "sampling" is only a subset of composition technique) since long before Mozart, continuing to the present day.

For two examples of voluminous derivative works spanning centuries, see La Folia and the Gregorian chant melody Dies Irae.
4.28.2008 9:27pm
Scote (mail):

Copyright protection was intended to protect innovation, not of that which is complex, but of that which is valuable.


Neither. Copyright is a carrot designed to advance the arts and sciences by granting author's a monopoly for a limited time. It isn't designed to protect anything except an author's temporary right to exploit his expression, and then only for the purpose of advancing the arts and sciences.
4.28.2008 9:37pm
Curt Fischer:


Reader Y: Copyright protection was intended to protect innovation, not of that which is complex, but of that which is valuable.


Scote: Neither....It isn't designed to protect anything except an author's temporary right to exploit his expression, and then only for the purpose of advancing the arts and sciences.



Scote, do you mean to imply that advancing the arts and sciences is not necessarily valuable? To me it seems that advancing the arts and sciences is valuable, and that therefore, both you and ReaderY are right.
4.28.2008 10:23pm
Scote (mail):

Scote, do you mean to imply that advancing the arts and sciences is not necessarily valuable?


I do think advancing the arts is valuable but "advancing the arts and sciences" != the copyright The copyright is a **means** to encourage an end, but it is *not* the end itself and the copyright is not the value--not from a constitutional stance anyway.
4.28.2008 11:15pm
Paul Karl Lukacs (mail) (www):

Low culture -- financed by consumers.

High culture -- financed by taxpayers.
4.29.2008 1:05am
Fred Beukema (mail) (www):
As for All You Need is Love, if the horn part you are talking about if from the beginning, then its not from Glenn Miller. Rather, it is a quote of the opening of La Marseillaise, the French National Anthem. If its some other horn part in the song, then I'm not remembering it.

La Marseillaise is at the beginning of "All You Need is Love" but the opening sax riff of "In The Mood" makes an appearance as the song devolves near the end. It appears in close proximity to the also-mentioned quotation of "She Loves You".

All this Beatles &copyright talk brings to mind such other derivative works as the Beastie Boys "Paul's Boutique," a masterpiece album that could not be legally made today except at exorbitant cost (and probably not at all, given that many of the artists might not grant quoting permission at any price). And that's not to mention the Gray Album, even!

--------
For two examples of voluminous derivative works spanning centuries, see La Folia and the Gregorian chant melody Dies Irae.


The Dies Irae has fascinated me since I learned about it in college. There's a podcast by Film Score Monthly magazine that did a good episode last year about the Dies Irae, from a decidedly film music perspective that nevertheless touched on a lot of interesting instances of its use.

Geez. Beatles and Dies Irae and Sports Night -- this is my kind of thread!
4.29.2008 1:12am
Libertarian1 (mail):
I am going to use this forum to state a pet peeve. We basically give music copyrights for 100+years. Lets change to a different valuable arts and sciences. You form a company, spend 10 years and $1B to develop a brand new drug which cures cancer. You now have 7 years to recoup all your expenses and make a profit to finance future development. At that time anyone and everyone can take your formula as their own, sell it at a profit and not have even ask and of course never pay you even dollar one. Happy birthday protected, research free to all. Maybe that is why we have such trash in the arts and desperately need cures for major diseases.
4.29.2008 1:53am
Kirk:
matt,

An interesting concept, but your exponent is far too small. Perhaps you're not aware that the basic copyright registration fee is only $45? Your scheme would only result in a $4,480 for renewing the original 1928 Mickey Mouse copyrights for the years 2008-2018. Way too small to have your desired effect. And even an eight-fold increase per renewal only results in $143,360 after 50 years.
4.29.2008 3:40am
markm (mail):

First, even simple melodies don't necessarily spring up without people devoting time and care to them. Many "folk songs" likely have authors whose identity has just been lost to our collective memory.

True, but those unknown authors of centuries ago still composed those songs even though copyright protection was nonexistent, and if they were paid at all, it was only for live performances. Copyright is a good thing to the extent that it encourages people to do the work involved in creation - but lifetime + 75 years is far, far longer than is required for that, and in fact will inhibit creation. Most creative works weren't developed de novo but involve some recyling of bits of earlier work. Beyond that, I suspect music (at least) is approaching the point where every non-discordant new melody will somewhat resemble older works by coincidence if not by conscious or unconscious copying, and it will become impossible to publish anything without consulting a lawyer...

Kirk, Matt, I like the basic idea, but use a table with far more rapidly increasing costs for the first few renewals. E.g., $45 for the initial registration, $10,000 for renewal at 14 years, $100,000 for renewal at 28 years, and use the exponential formula from a base of $100,000 after that.
4.29.2008 8:17am
Randy R. (mail):
Musicians have certianly appropriated the works of others for some time. Classical musicians have often taken earthly folk music or popular tunes and reworked them into 'serious' music. Likewise, jazz musicians and others have taken 'serious' music and made it fodder for their works. I once heard a superb organist turn The Trolley Song into a Bach-like fugue!

So where is the dividing line between high brow and low brow? It isn't as clear as one would think. I argue that there is only good music and bad, and the good music contains everything from Mozart to Miles Davis to Eminem.
4.29.2008 9:06am
Fub:
markm wrote at 4.29.2008 7:17am:
True, but those unknown authors of centuries ago still composed those songs even though copyright protection was nonexistent, and if they were paid at all, it was only for live performances. Copyright is a good thing to the extent that it encourages people to do the work involved in creation - but lifetime + 75 years is far, far longer than is required for that, and in fact will inhibit creation.
I think this is already demonstrably true. I mentioned peripherally Roy Harris' troubles with "Happy Birthday" (Boingboing link) in the previous Volokh thread on this subject.

Great composers, and maybe especially great American composers, have historically quoted others' works as a matter of course, sometimes briefly, and sometimes extensively. If Charles Ives were composing today in the manner he worked during his lifetime, he might need a small army of lawyers and a corresponding bank account just to publish his works. As T.S. Eliot apocryphally observed "Minor poets imitate. Major poets steal."

One remotely possible and arguably positive consequence of America's current lengthy copyright life might be extensive use of much older American musical works in new compositions. That could bring a renaissance of interest in many long forgotten American composers whose works are nonetheless worthy of interest. But seriously hoping for that would be grasping for straws.
4.29.2008 1:12pm
FormerUTStudent (mail):
Tangentially related: when I was in grad school, the Linguistics Department at the University of Texas at Austin had its own library, separate from the main university library and conveniently located in the department's offices. I was told that it was the gift of former professor Archibald Hill, nephew of the composers, and paid for by the royalties he had inherited from them. I've liked the song better ever since.
4.29.2008 4:57pm
Bill Woods (mail):
Kirk:
An interesting concept, but your exponent is far too small. Perhaps you're not aware that the basic copyright registration fee is only $45? Your scheme would only result in a $4,480 for renewing the original 1928 Mickey Mouse copyrights for the years 2008-2018. Way too small to have your desired effect.

But breaking the copyright on Steamboat Willy isn't the effect Matt was proposing to achieve:
It doesn't bother me that Mickey Mouse is on practically-perpetual copyright; Disney's still using it and it's still driving wealth creation.

What does bother me is the fact that literally millions of marginal works, which no longer provide any significant economic benefit to the author, the author's heirs, or anyone else, never go into the public domain either.

It seems like a reasonable idea to me.
4.29.2008 5:28pm
matt (mail):
Kirk/markm/Bill Woods:
Bill is correct about my intent.

Also, consider that it's not just the mickey mouse copyright; there's also renewals on every movie, comic book, story, song, album, and on and on that the mouse has ever appeared in. Even the expense of keeping track of all this stuff to make sure it gets renewed every 10 (or n) years provides further disincentive to continue renewing stuff you're not making money on.

When I'm emperor-for-life, though, I'll be happy to take suggestions on the appropriate exponent. Maybe I'll grant you an earldom if I like your idea :)

-m@
4.29.2008 6:34pm
Kirk:
Matt,

I'd rather have a small share of the proceeds, thanks!
4.30.2008 2:20pm