[Robert Brauneis, guest-blogging, April 29, 2008 at 3:38pm] Trackbacks
Happy Birthday II: 115 Years of Copyright, and 22 More to Come?

Yesterday, my post to this fine forum argued that there were good policy reasons for granting Patty and Mildred Hill copyright protection for the melody of "Happy Birthday to You." Don't worry, they got it. Their book "Song Stories for the Kindergarten," which contained the "Happy Birthday" melody with different words under the name "Good Morning to All," was duly registered with the Copyright Office before publication in 1893. At that time, the Hill sisters would have been looking forward to a total of 42 years of copyright protection. The Copyright Act of 1909, however, gave them (and every other copyright holder) an additional 14 years of copyright -- by modern standards, a modest windfall. That brings us to 1949, when "Song Stories for the Kindergarten" took in its last royalty payment and expired, that is, entered the public domain.

Fast forward to 2008. Warner Music Group is pulling in about $2 million a year from "Happy Birthday to You." It's counting on that stream of income to keep flowing until 2030. What happened?!?

The very short answer is that WMG is not claiming copyright in the melody, but only in the combination of the melody and the words, which it claims was first copyrighted in 1935. These days, a properly renewed 1935 copyright is good for 95 years; 1935 plus 95 equals 2030.

Granting a new copyright for combining an old melody with new words, or even an old melody with old words, is not necessarily a bad thing. For example, a hymn called "Materna" and a poem called "America" both remained relatively obscure until the day that someone thought to combine them, and then voila!, "America the Beautiful" appeared. The right combinations can be of enormous cultural value, and to my mind there's nothing wrong with offering the incentive of copyright protection to experiment with new combinations.

In this case, however, the story's not that simple. There is very good evidence that the "Happy Birthday to You" words were already being sung to the Hill sisters' melody back in the 1890s. Moreover, those words and melody appeared together in many published songbooks in the 1910s and 1920s. Thus, WMG's claim that the song is still under copyright has to be much more complicated. We don't know exactly what WMG's litigation position would be, because there hasn't been any litigation about the combination of words and melody. (There was some litigation in the 1930s and 1940s, but that was about the melody alone, which was still under copyright at the time.) Here's my best guess about what WMG would have to assert:

(1) Patty and Mildred Hill actually wrote the "Happy Birthday to You" words back in the 1890s, but they did not authorize anyone to publish them until 1935. All of the songbooks in which the song appeared in the 1910s and 1920s were infringing.

(2) In 1935, the combination of "Happy Birthday" words and music were published in an authorized version with proper copyright notice (which was the necessary formality for gaining federal copyright protection at the time).

(3) In 1962, copyright in the "Happy Birthday" words and music was properly renewed.

I've spent a lot of time investigating whether these assertions are true. (I also take a lot of pages in my article draft to evaluate the assertions, which may be one reason why I haven't yet placed the article -- law review editors take note, I'll accept an offer conditioned on cuts!) It turns out that all three assertions have serious problems.

I'll discuss those problems in a post tomorrow. For now, let me just say that it seems quite clear that, back in 1935, no one associated with "Good Morning to All" was thinking that publishing it with the "Happy Birthday" words would extend copyright past 1949. For example, the registrations for the versions of the song published in 1935 claimed copyright only in the arrangements made by the publisher's employees-- piano accompaniments and the like -- not in the song itself. And those 1935 versions credit only Mildred Hill, the musician sister who wrote music for dozens of published songs but never once wrote lyrics; they fail to credit lyricist Patty Hill.

Yet, as Dr. Johnson would have said, when a music publisher knows that his successful song will soon slip into the public domain, it concentrates his mind wonderfully. As 1949 approached, someone came up with a colorable theory under which royalties for the use of "Happy Birthday to You" could be demanded until the distant year of 1991 -- which, thanks to repeated Congressional largesse, has now receded to the still-distant year of 2030.

cjwynes (mail):
Sounds to me like somebody needs to force the issue and make a test case out of it. I'm sick to death of hearing those knockoff birthday songs every time some TV character has a birthday.

I simply cannot conceive of any possible justification for allowing a continued intellectual property right several decades past the authors' deaths. I would love to see a movement spring up for IP reform, something along the lines of:
1. Everything published before 1958 enters the public domain immediately;
2. Everything from 59-'08 expires 50 years from its publication;
3. Copyright is 25 yr term, renewable once, OR life of the (non-corporate) author, whichever is longer.
I think that would be perfectly reasonable and agreeable and I suspect the general public would widely support that over the status quo. Heck, I think most lawyers would prefer that, I don't recall anybody in my IP class a few years back that had anything positive to say about the Mickey Mouse Protection Act.
4.29.2008 5:23pm
Scote (mail):
Clearly one huge disadvantage and argument against extra long copyrights is the difficulty in unwinding the evidence in future litigation--a problem that will only be exacerbated 90 years from now since **everything** is automatically copyrighted without any sort of registration.
4.29.2008 5:29pm
Soronel Haetir (mail):
As a content creator I wouldn't mind seeing IP gain the sort of permanent ownership that other forms of property have. My only problem with this is that an entirely new compensation model would be needed. Previously society was compensated by materials eventually becoming free for all to use. I'm honestly not sure what sort of sociatial compensation would be fair for Disney to make if this bargain were to be replaced.
4.29.2008 5:46pm
freelunch (mail):
I'd go with something similar. The first copyright would be free and automatic as it is today. The copyright would be renewable for a total life of the copyright of either 4 fifteen-year or 3 twenty-year periods for all published work, but not survive the creator by more than 15 years. Renewal would require the copyright holder to pay a fee and show that the product was available for sale during the course of the prior copyright period.

Corporations would not own any copyrights. Partnerships of the artists who were actively involved in the production would be allowed to own the copyright and would have to designate one member as the primary artist for the 15-year survival rule.

Characters could be trademarked and protected if actively used in the same manner any other trademarks are protected.
4.29.2008 5:47pm
Randy R. (mail):
I love it when someone upends the conventional wisdom, or lazy thinking, or better yet, fraud. Go get 'em!
4.29.2008 5:59pm
KeithK (mail):
In an ideal world where politicians only did what was right (and never because someone gave them campaign donations) any changes to the length of copyright would not apply to existing works, only future ones.
4.29.2008 6:14pm
Roger Schlafly (www):
This is all very interesting, but I still don't see how it affects any of the basic arguments for or against long copyrights.
4.29.2008 6:20pm
cjwynes wrote at 4.29.2008 4:23pm:
I simply cannot conceive of any possible justification for allowing a continued intellectual property right several decades past the authors' deaths.
Even before the present insanely long copyright terms, copyright agents (organizations allegedly representing artists) double dipped in the royalty pool.

Here's how it works. Every broadcaster pays composition royalty fees to ASCAP/BMI/SESAC. You'd think the fees for any broadcast would end there. But you'd be wrong.

Small business owners (like hot dog stands and barber shops) often have a radio playing on premises. At some time every such small business will get a visit from the ASCAP goons. The goons demand payment of exorbitant royalty fees for the ASCAP compositions which the hot dog stand customers hear on the radio. They can, and will, sue to collect the royalty fees. Of course, their behavior often makes business owners think they might do something more than sue, like the old mafia line "nice place you got here..."

Compounding the double dipping collection, many artists have to sue the royalty rights organizations to get a dime of the royalties collected allegedly on their behalf.

This isn't news. It's been going on longer than most readers here have been around. The copyright industry is one of the most corrupt businesses on the planet.
4.29.2008 6:43pm
Dilan Esper (mail) (www):
As a content creator I wouldn't mind seeing IP gain the sort of permanent ownership that other forms of property have.

Well, that assumes that IP is really property, and really analogous to other forms of property, which are contestable assumptions. Further, while Eldred endorsed very long extensions as consistent with the Constitution, I think even the most strident advocates of extended copyright rights would agree that a permanent copyright would violate the limitation on Congressional power to grant copyrights "for limited times".
4.29.2008 6:44pm
Dan Weber (www):
Sounds to me like somebody needs to force the issue and make a test case out of it.

Happy birthday to you.
Happy birthday to you.
Happy birthday dear songwriter.
Happy birthday to you.
4.29.2008 6:47pm
Soronel Haetir (mail):
Just because Congress can't do it in one shot doesn't mean that the old bargain of works eventually entering PD isn't effectively dead. The problem I see with the status quo is that we effectively have the worst of both worlds. If a new bargain is to be struk that position ought to be reflected honestly and debated.
4.29.2008 7:03pm
Crackmonkeyjr (www):
I don't particularly see why it is unjustifiable to extend a copyright past the life of the author. The idea behind copyrights is to provide an incentive to create original works. The life of the author may be too long, too short or too indeterminate to provide a proper incentive.

What bothers me is the extension of existing copyrights. Here, the author has already done the work and so there is no reason to continue to provide incentives. I would even argue such an extension is unconstitutional, as the Constitution explicitly provides a reason for extending the life of copyrights.
4.29.2008 7:10pm
Soronel Haetir (mail):
I suppose it is also possible that when the courts next address this issue that they come up with an answer different than Aldred.
4.29.2008 7:50pm
EH (mail):
The life of the author may be too long, too short or too indeterminate to provide a proper incentive.

How is this level of "proper incentive" determined? Aside from the current regime, I haven't seen a rational reason why the incentive should benefit anybody except the (human) creator.
4.29.2008 7:58pm
Soronel Haetir,

As a content creator myself, I'm strongly opposed to your suggestion. Having a state-enforced monopoly on your expression that lasts as long as you (the natural person) survive is a darn generous societal compensation.

And I am a bit troubled by all those who want to distinguish corporations--isn't the corporation one of the greatest inventions of modern (and almost-modern) times? Surely we can come up with a reasonable rule that treats the copyright owner fairly whether that owner is an individual person or a group--but I'm open to whatever suggests might be made by those with more experience in this area.
4.29.2008 8:22pm
Crackmonkeyjr (www):
EH: The "proper incentive" is determined the same way anything else in a democracy is determined, by passage of a law by Congress, signed by the president.

The incentive is designed to benefit the (human) creator, by allowing the (human) creator to sell his rights to other people. Liquid assets are much more useful.
4.29.2008 8:23pm
Soronel Haetir (mail):
The other problem we run into is the intersection of copyright and trademark. I realize that trademark is an outgrowth of commerce regulation rather than a direct incentive to creativity, but that does not negate Disney's interest in protecting MM as a distinctive mark.

I do find one of the earlier suggestions of permanent protection along with the payment of scaling fees to have some merit. I have a lot of problems with limiting protection to natural persons.

As I said before, this is only important if the previous model of society being compensated by eventually gaining full use of the work is to be abandoned. Right now I feel that model is very close to dead with no compensation for its loss.
4.29.2008 8:38pm
freelunch (mail):

I have a lot of problems with limiting protection to natural persons.

When corporations start to create art, I'll reconsider my position, but they do not and cannot today. They are legal fictions incapable of creating anything that can be copyrighted or patented. On its face, the Constitution did not authorize giving this to corporations, so I see no need to give it to them.
4.29.2008 9:08pm
Soronel Haetir (mail):
I think the statement that corporations don't create art (ignoring the fact that works need not have any creative content to be protected) to be a bit silly. Certainly there are works that indiviuals create as individuals. But there are also many group works that would never come about without some corporate impetus. The individuals there have no copyright incentive, nor should they have any.
4.29.2008 9:41pm
anym_avey (mail):
Sounds to me like somebody needs to force the issue and make a test case out of it. I'm sick to death of hearing those knockoff birthday songs every time some TV character has a birthday.

While the basis for keeping the song copyrighted may very well suck and have other serious legal problems, the quest to evade the copyright through parody or other means has yielded some fairly creative alternates. These carry the double benefit of being an inside joke to those who know WHY the effort was undertaken.

I'm honestly not sure what sort of sociatial compensation would be fair for Disney to make if this bargain were to be replaced.

The company that built its nest egg by retelling public domain tales needs additional societal compensation for giving up its own copyrighted works in due time? I'm not seeing it.
4.29.2008 9:45pm
Soronel Haetir (mail):
No, the compensation I'm referring to is what Disney would need to provide instead of the works eventually entering the public domain.
4.29.2008 10:02pm
freelunch (mail):

But there are also many group works that would never come about without some corporate impetus.

The groups did the work. They need to own the copyright. There is no reason for the corporation to own it. The corporation may contract with the owners of the copyright for the right to exploit it.
4.29.2008 11:24pm
FWB (mail):
The length of time granted for copyright is an area that stinks. The earliest copyrights were for 14 yrs with one 14 yr renewal. Today in contrast copyrights are vitually forever. The Copyright clause should be followed and that clause states that the author shall be given protection for a limited time. Now how to determine limited time. For an author, the maximum amount of time available to the author is the author's lifetime. So a valid and proper reading of the constitution as to what constitutes a limited amount of time must result in the understanding that a limited amount of time to an author is less than a lifetime. The current lifetime plus protections come about because of corporate greed. When the constitution talks about limited time, it ain't talkin about geologic time.
4.30.2008 7:10pm
Just Dropping By (mail):
Regarding whether corporations should be permitted to hold copyrights, if I remember my IP Law class correctly corporations cannot be "inventors" of a patent. They can only take ownership by assignment from the natural persons who created the invention. I don't see why a similar system couldn't work for copyrights, although I will emphasize that I'm not opposed to the present system of ownership for copyrights.
4.30.2008 9:28pm
DCA (mail):
As a content creator I wouldn't mind seeing IP gain the sort of permanent ownership that other forms of property have.

Um, this will get me in trouble, but what "other kinds of property" are you thinking of? Personal property, yes--but real property (for example) does not remain yours if you are utterly passive: you have to pay an annual tax. Ditto for mining rights (which lapse if you do nothing). So I've never been able to see the problem with the re-register requirement,
not that it would have helped here.
5.2.2008 1:51am
Orson Buggeigh:
Roger S. "This is all very interesting, but I still don't see how it affects any of the basic arguments for or against long copyrights."

My perspective is probably a bit different from most of you - IANAL - I'm a historian. Long copyright and indeterminate copyright create real problems for people wanting to use materials held in archives and cultural institutions. 'Orphan works,' or ones whose legitimate owners cannot be identified become a real problem. A long-lasting problem due to the now excessive (IMHO) length of copyright protection for virtually everything. Not to mention to sad economic reality - most academic authors pay the costs associated with quoting from someone's papers, or using photos from a library or state historical society. It is not unusual for the problem to play out in a way which restricts scholarship.

The archives owns the papers,but this is the physical items,not the intellectual property. So to quote that letter in a collection of Viet Nam war era student life materials, the researcher needs the permission of the institution owning the physical document,and the permission of the person who created that item - the letter writer, not the recipient, who gave it to the archives. If he's lucky, the donor actually signed a deed transferring the intellectual property of his collection to the archives, but that only applies to the materials he created. It does not cover the intellectual property of the letters the donor received from others. So now the researcher needs to try to find the mother of the alumnus who wrote the letter (author and copyright holder of the intellectual property of the letter). After finding out the letter writer is dead, the problem now becomes one of finding the heirs,and contacting all of them to get permission.

Let's not even talk about photo albums, containing prints from several of the donor's room mates and family members. Intellectual property becomes an issue,as the archives decides to require the researcher to obtain clearance from the intellectual property owners before they will duplicate the images, or allow their publication.

I agree with cjwynes, the problems associated with current copyright are serious, and they impede inquiry and the public dissemination of knowledge. I think this is a serious problem, but obviously the tiny number of historians out here isn't going to be of much concern to the entertainment industry or Congress. However, I think the matter really should go back to the constitution. Copyright, like patents, were intended to give authors and creators of intellectual property limited monopolies. The idea was to encourage creativity,but to recognize the public benefit of material moving into the public domain. What we have now effectively eliminates the movement of material into the public domain in a timely manner.

My proposal would be similar to cjwynes. End the practice of automatic copyright, but allow a limited period of protection before the creator acts to filefor copyright - say ten years. Copyright ought to be for 14 years,renewable for another 14, but I could accept a 25 year copyright,renewable for another 25 for the basic filing fee. After the two terms expire, the normal course would be for the property to move directly into public domain. However, I would be willing to give the entertainment industry one break - but it would also give the public a tangible benefit in return. At the expiration of the renewal, the creator or copyright holder could renew the copyright, on an annual basis, in return for payment to the US treasury of $1,000.000. This would encourage the entertainment industry to relinquish copyright to properties which no longer sell, while protecting profitable ones like certain cartoon characters. By requiring the intellectual property holder to take the action to register ownership of intellectual property, rather than creating something that exists automatically and for an extensive period of time, it would simplify and expedite the transfer of most material into the public domain in a reasonably short time. The world of scholarship would benefit greatly from this.

My opinion and a buck buys a cuppa coffee....and thanks for bringing up this subject on the VC.
5.2.2008 11:28am
Pon Raul (mail):
I believe that I heard Richard Epstein suggest that there might be a reverse takings problem with extending copyright term for preexisting works. (But I could have misunderstood him).

Anyways, the reason for the extension also has to do with international pressures. Other countries won't give our works the same length of protection that people/companies in their own countries get unless we also give the life+70. We don't want to punish our copyright holders who sell their works overseas, so we give in. It is a racheting mechanism largely due to the moral rights theory of countries like France.

The moral rights theory of copyright protection is BS. IP is not real property. The quid pro quo of real property is that the government will protect it in exchange for you not organizing a mob to protect it (so that you can spend your time being more productive rather than sitting along a fence with a gun). Intellectual property is different. It would be almost impossible for anyone to organize a mob to protect songs or inventions once outsiders are given access to the song or invention. The IP quid pro quo is temporary protection by the government (the monopoly mob) through the courts for the benefit of it eventually entering the public domain.
5.2.2008 12:43pm