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[Robert Brauneis, guest-blogging, April 30, 2008 at 6:12pm] Trackbacks
Happy Birthday III - Why hasn't anyone challenged the copyright?

In yesterday's post, I argued that to get a court to uphold the 1935-2030 copyright in "Happy Birthday to You," Warner Music Group would likely have to convince the court of three things. It turns out that WMG would face difficulties with all three. The details are in my article ( http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111624), but here's a summary:

  1. There's little or no evidence that Patty or Mildred Hill wrote the "Happy Birthday" lyrics. Indeed, Patty Hill testified in 1937 that she had written the original "Good Morning to All" lyrics, and that she had used the "Happy Birthday" lyrics, but she stopped conspicuously short of testifying that she had written the "Happy Birthday" lyrics. Over a hundred years after those words were first used with the Hill sisters' melody, no one is alive who could testify about their origin, and I have found no relevant documentary evidence — no drafts, no letters, nothing.

  2. The 1935 publications of "Happy Birthday to You" bore the copyright notice "Copyright 1935 by Clayton F. Summy Co." It is very likely that the Summy Company did not own copyright in the song at the time (it probably had an implied license for the song, and owned only the musical arrangments that its employees had made). Under then-prevailing precedent, and for several decades thereafter, if you published a work with copyright notice naming someone other than the work's owner, you forfeited copyright. However, here WMG might be able to take advantage of later changes in judicial attitude.

  3. The renewal registrations filed in 1962 — necessary to maintain copyright beyond 1963 — are only for the arrangements, and do not claim to renew the song itself. This is probably the point of greatest weakness in the copyright, and this issue could also likely be decided early in litigation, because the facts are clear.

So if there are these weaknesses, and if a $2 million per year income stream is at stake, why hasn't anyone challenged the copyright's validity? The short answer is that no single user is paying enough of that $2 million to make a challenge worthwhile, and it's extremely difficult for users to organize a collective effort.

In recent years, about 35% of the "Happy Birthday" income has come from performance rights licensing through ASCAP. (I can make this estimate because I discovered that there has been litigation over the alleged mishandling of a trust funded by "Happy Birthday" royalties, and I got access to the court files, which include income reports.) ASCAP collects money from thousands of restaurants, bars, and radio and TV stations for "blanket licenses" covering all of the millions of songs that are in its repertoire. The price of the licenses don't change when individual songs go in or out of copyright. That means that the licensees don't have an incentive to challenge the copyright on one song (and a court might even rule that they couldn't). Other music publishers that receive royalties through ASCAP might be able to mount a challenge, but there may be too much glass in their own houses to start throwing stones.

The remaning 65% comes from all other licensing — for uses in movies, on TV, in ads, and so on. Here's one small example I just learned of from a woman who e-mailed me yesterday from Australia. She was involved with an Australian movie called "Annie's Coming Out". It's about a social worker who works at a hospital for mentally disabled children. During one scene in the movie, a group of children with multiple sclerosis sing "Happy Birthday" to another child with MS. When the movie was released (on a very small scale) in the US in 1984, its producers had to pay WMG's predecessor $5000 to use the song.

Licenses for bigger US releases probably cost more (IMDB lists 176 movies that feature "Happy Birthday to You" but it misses "Annie's Coming Out"). But even, say, $30,000 is not nearly enough to consider funding copyright litigation. And in my article, I consider coordination problems that make it unlikely that a group of "Happy Birthday" users will ever find each other and jointly finance litigation. The result is that the copyright in the song will probably never be tested.

Ultimately, this is not just about one song. There are almost certainly other works out there generating significant licensing income in spite of serious copyright weaknesses. However, I don't see any easy fix.

Scote (mail):
So, is there no class action that could result in the refund of all the monies illegally collected since 1963 due to fraudulent copyright claims?
4.30.2008 7:35pm
Robert D. (mail):
False or exaggerated copyright claims are a common problem. See this essay on "Copyfraud" in the NYU Law Review:

"Copyfraud," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244
4.30.2008 7:35pm
Lior:
Here's a simple fix: every published work has copyright protections for 14 years, registration with fee (say $500) required for a 14-year extension. This will make it very simple to keep track of the owners of works that are worth enough to be registered.
4.30.2008 8:03pm
Scote (mail):
I read it when it came out. It seems especially relevant to the copyright and museums conference yesterday that William Patry mentioned in his Blog.

We really ought to go back to a rational time length 14/14 with registration on the renewal--and retroactively so :-) (Hey, if retroactive was good enough for extensions, then it is good enough for reductions in copyright length.)
4.30.2008 8:05pm
billb:
Isn't the prevailing party in a copyright infringement suit entitled to seek attorney's fees? Some enterprising IP lawyer needs to YouTube up himself singing the song, fight the DMCA takedown notice, get sued, win, and then demand payment of his attorney's fees (at his own hourly rate).
4.30.2008 8:12pm
Lior:
Regarding the issue of unfoudned claims of copyright, one solution can be private policing, a.k.a. "bounty hunting": similar to the case of copyright infringement, make a false assertion of copyright subject to statutory damages of up to $150K/assertion, without having to show real damages. What's good for the goose is good for the gander, right?

@Scote: I would say that retroactively reducing the term of copyright in a work to below the term it was guaranteed when created is wrong. After all, that term of copyright was (nominally) the incentive for creating the work. Reduction to that term, however, is certainly appropriate.
4.30.2008 8:14pm
Chimaxx (mail):
And these false copyright claims damage later works. One of my favorite examples (and one not in the IMDB listing of movies using "Happy Birthday to You" is the Wallace and Grommit short "The Wrong Trousers."

As the Wikipedia article puts it:

In the original BBC version of the film Gromit's birthday card plays 'Happy Birthday to You' which is associated with birthdays in Britain and North America. When the film was released on BBC DVD in 2000 this was replaced with 'For He's a Jolly Good Fellow' for copyright reasons. Also removed for the DVD (again for reasons of copyright) are certain specific tunes from the penguin's radio replaced with generic Hammond organ music. Amongst the pieces removed are (How Much Is) That Doggie in the Window? - along with Wallace's singing of it the subsequent morning - and Happy Talk from the film South Pacific; Tie a Yellow Ribbon Round the Ole Oak Tree was left intact.


I own copies of the Wallace and Grommit shorts in both a VHS videotape version (with the original music, including "Happy Birthday to You" and "How Much Is That Doggie in the Window" and the later DVD version, and the film definitely suffers from the changes.
4.30.2008 8:50pm
fffff:
I'm a class action lawyer, and I'm getting a kick out of these replies.
4.30.2008 9:22pm
Roger Schlafly (www):
No easy fix? There are a lot of people who think that copyrights are way too strong, and ought to be scaled back. This example adds more evidence. Proposals to scale back copyright law would fix this problem.
4.30.2008 9:30pm
Scote (mail):

@Scote: I would say that retroactively reducing the term of copyright in a work to below the term it was guaranteed when created is wrong. After all, that term of copyright was (nominally) the incentive for creating the work. Reduction to that term, however, is certainly appropriate.


I can see that many would see it as a un-lawful taking, however the government is not obligated to grant author's monopolies at all--it is an optional part of the constitution. A further think that the extensions were un-reasonable on their face and that it makes sense, culturally and economically to return to rational copyright lengths.
4.30.2008 11:42pm
Eapen Thampy (mail):
I don't know anything about ASCAP or the associated law, but do they have standing to collect fees at all? Any information on this front would be appreciated.
5.1.2008 2:14am
gwinje:
Why doesn't Universal or Disney stop paying to use Happy Birthday, get sued and win. Even if you can't get attorney's fees, if the legal issues are as clear as the post indicates, they will surely save money in the long run, won't they?

And, though I haven't the foggiest idea about the law governing ASCAP in general: 1) I'm all for making sure artists get paid for their work, and am in favor of an organization that does what ASCAP says it does. 2) Having worked at a bar that both hosts artists whose rights ASCAP is "protecting" and has to pay ASCAP for the jukebox (not the live performances), there are very few things I would like to see more than ASCAP on the wrong end of an energetic judge.
5.1.2008 8:33am
W. J. J. Hoge:
ASCAP, BMI, and SESAC act as agents for copyright holders in the collection of performance right royalties. The law allows for collection of royalties for the use of a work in a "public performance for profit."
5.1.2008 11:11am
New World Dan (www):
The price of the licenses don't change when individual songs go in or out of copyright

No songs have gone out of copyright in the last 30 years, nor do I exepct any in the forseeable future either.
5.1.2008 11:42am
Dan Weber (www):
Why doesn't Universal or Disney stop paying to use Happy Birthday, get sued and win.

Because Disney is one of the biggest benefactors of copyright law. I'm sure they'd happily pay $10M a year for "Happy Birthday" just as investment to protect the rest of their portfolio.

Although I wonder how bad off Disney would really be if Steamboat Willie went public domain. I've asked this before, but since they still have a massive Trade Mark engine behind Mickey Mouse, couldn't they effectively stop other people from making a new movie starring Mickey Mouse?

They might lose some sales of Snow White on Blu-Ray, but haven't they trademarked the Disney likeness of Snow White?
5.1.2008 1:08pm