pageok
pageok
pageok
[Robert Brauneis, guest-blogging, May 1, 2008 at 6:09pm] Trackbacks
Happy Birthday IV: When is the use of an anecdote irresponsible?

Taking a breather from arcane copyright doctrine, here's an issue that's not specific to copyright, or even to law at all. What is the proper role of anecdotes in making policy arguments?

Suppose that I'm arguing that the term of copyright is too long, and I say, "because of Congressional pandering to special interests in Hollywood, even 'Happy Birthday to You' is still under copyright!!!" Why is this example likely to carry particular persuasive force? In part, because the audience probably makes false assumptions. "Happy Birthday to You" is one of the few songs that most people still learn as children, at home, from family and friends, far from the commercial world of iTunes and Vh1. That will cause many people to lump it with songs like "Mary Had a Little Lamb" and "Twinkle, Twinkle, Little Star," though the latter are considerably older. And many people may also assume that if "Happy Birthday to You" is under copyright, the copyright owner could demand a license for singing it at a family birthday party — outrageous! — though private performances have never been regulated by copyright. I discuss this sort of problem with the use of anecdotes in my article, I can't say that I have the answer.

Taking a hard line, one might say that all anecdotes and examples should be accurate and typical (and not foreseeably misleading) or they shouldn't be used. The requirement of being typical may be impossible to meet, however. Members of a group may be diverse enough that none of them is really "typical," and anecdotes can be misleading in very subtle ways.

Meanwhile, we human beings may be built in such a way that statistics often don't move us enough to take appropriate action. Specific examples, as supplements to numbers and percentages, may actually be necessary to engage us to respond adequately. So it's not clear that minimizing the use of anecdotal argument would even theoretically be optimal, given that we are who we are.

Here's a possible rule of thumb: small deviations of examples from the typical are inevitable, and just need to be accepted; medium-sized deviations should be accompanied with a proviso ("not all cases are like hers"); atypical examples should be avoided; and there should be some effort to figure out how typical an example is deploying it. I'm not sure how far that gets us, however. I have to confess that in yesterday's post, I mentioned the use of "Happy Birthday to You" in the movie "Annie's Coming Out" in part because the scene sounded striking: kids with multiple sclerosis were singing it to another kid with multiple sclerosis. Is that a typical use? Is the fact that that scene is touching something we should really take into account when formulating copyright policy in general, or in a fair use analysis?

Perhaps Volokh Conspiracy readers have insights to share.

talboito (mail) (www):

Suppose that I'm arguing that the term of copyright is too long, and I say, "because of Congressional pandering to special interests in Hollywood, even 'Happy Birthday to You' is still under copyright!!!


That isn't anecdote, its a plain statement of fact.
5.1.2008 7:14pm
tvk:
I don't think the anecdote is that unfair here. OK, the pure private performance at home is not infringement. And the performance at a birthday party outside is fair use or, at least, bad publicity for the copyright holder to enforce against (so they won't). But therein lies the rub: it shows that Congress is pandering to special interests to such extent that the special interests get everything just short of something that will provoke enormous outrage. This "zone of misappropriation" where the public domain is intruded upon but not worth people mobilizing to overcome is precisely the collective action problem that pandering to special interests is all about; and refuting the anecdote brings that out.
5.1.2008 7:33pm
Scote (mail):

And many people may also assume that if "Happy Birthday to You" is under copyright, the copyright owner could demand a license for singing it at a family birthday party -- outrageous! -- though private performances have never been regulated by copyright.


And yet a family birthday party at a restaurant or other outside venue may well count as a public performance, so much so that restaurants have to--and do--pay license fees to sing it or make up alternate songs to avoid using it. Even the Campfire Girls were sued for singing songs at camp, so uses the public considers non-commercial are very much commercial in the eyes of the music royalty industry.

Want to sing Happy Birthday at a school? Summer camp? In the company lunch room? On the birthday video of your kid you posted to You Tube?

The copyright of Happy Birthday has real and wide ranging consequences that you have chosen to overlook.
5.1.2008 7:56pm
BobVDV2 (mail):
How about when the anecdote is patently false? (N.B.: Link not updated to include Bosnian sniper fire.)
5.1.2008 8:17pm
Roger Schlafly (www):
The facts and analysis presented by Robert Brauneis just further justify the anecdote. They show that a big company is able to manipulate copyright law to extract millions of dollars in fees, and interfere with something so common and ordinary as singing Happy Birthday in a restaurant. And these fees are so far removed from the actual creation of the song that it is not providing any incentive for the creation of new works. I suggest that people continue to use the anecdote, and cite Robert for details. I really don't see anything wrong with the anecdote.
5.1.2008 8:55pm
Fearless:
I think another point should be made.

Statistics are no substitute for normative or moral judgments.

One problem is that people are drawn to statistics as somehow providing an easy (i.e. objective) answer to some hard questions (that in reality do not have an objective answer at all). At least anecdotes have the advantage of tending to tackle these hard normative and moral questions more directly.

Obviously, anecdotes have limitations. But the limitations of statistics might be more severe.

The real issue is this. Don't use a hammer when a screw driver is required. And vice-versa. Sometimes, statistics are the best or at least a good tool for a particular problem. Often, they can be distractions from the real issues, which may very well be normative or moral.
5.1.2008 9:13pm
Scote (mail):
As a previous commenter noted, the fact that Happy Birthday is still copyrighted is not an anecdote. It is a statement of fact which may be invoked as an illustrative example of the excess of copyrights, but it does not qualify as anecdote in the general sense of being unproven.


anecdote |ˈanikˌdōt|
noun
a short and amusing or interesting story about a real incident or person : told anecdotes about his job | he had a rich store of anecdotes.
• an account regarded as unreliable or hearsay : his wife's death has long been the subject of rumor and anecdote.
5.1.2008 9:42pm
Vernunft (mail) (www):
Hollywood is responsible for the Berne Convention? Man, they're everywhere.
5.1.2008 11:32pm
Syd (mail):
Twinkle Twinkle Little Star and Mary had a Little Lamb aren't exactly ancient, either. The lyrics date back to 1806 and 1830, respectively. I assume Mary Had a Little Lamb must have copyrighted by Sarah Hale at some point, although it's certainly public domain now. The version by Paul McCartney used a different melody, so it may be under copyright.
5.2.2008 12:51am
Bruce:
I'm not sure why people are objecting that Happy Birthday is not an anecdote because it's factual. Anecdotes are often factual. Anecdotal evidence is a type of evidence. It's just not very *good* evidence, because the anecdote is usually atypical. It's usually atypical because the speaker naturally chooses the most emotion-generating anecdote he or she can find, which tends to lie on one end of the spectrum.

Robert is being unusually civic-minded in rejecting such evidence. There are legal scholars have built entire careers on anecdotal copyright horror stories.
5.2.2008 1:30am
Fearless:

It's just not very *good* evidence, because the anecdote is usually atypical.


I disagree with this strongly. An anecdote, even on that is atypical, can shed light on the moral consequences of our decisions.
5.2.2008 1:59am
Chimaxx (mail):
Roger Schlafly:
And these fees are so far removed from the actual creation of the song that it is not providing any incentive for the creation of new works.


meet Scote:
And yet a family birthday party at a restaurant or other outside venue may well count as a public performance, so much so that restaurants have to--and do--pay license fees to sing it or make up alternate songs to avoid using it.


I don't think this is necessarily the KIND of incentive for the creation of new works the founders had in mind for copyright, but it IS an incentive.

And I'm not sure anecdote is the wrong way to argue this issue--like the fact that had the copyright laws that now protect Walt Disney's "Pinocchio" been in place when Disney made the movie, they would have been required to license the work from its publisher or the author's estate, but in fact the story had, at that time, recently been promoted into the public domain.

We have no way of knowing what derivative works have been denied us because contemporary artists are not allowed the same freedom with Disney's Pinocchio that they were allowed with Collodi's--the freedom to consider non-new but still recent works like Pinocchio to be freely available (in both senses) for revision and reimagining.
5.2.2008 1:57pm
Scote (mail):

I don't think this is necessarily the KIND of incentive for the creation of new works the founders had in mind for copyright, but it IS an incentive.


Yes, that is an amusing artifact of monopolies. One could argue for more draconian copyrights on that basis, but ultimately the argument fails as it will become near impossible to write anything that doesn't infringe on something in the giant trash heap of near infinite presumptive copyright.
5.2.2008 4:36pm