[Robert Brauneis, guest-blogging, May 2, 2008 at 6:13pm] Trackbacks
HAPPY BIRTHDAY V: Evidence and Repose in a World of Long Copyright

Suppose you owned a piece of land and took no legal action while others used it for more than two decades. When you (or your successor) eventually tried to evict those users, would you prevail? For centuries, the doctrines of adverse possession and easements by prescription have stood in the way of such long-delayed action. These doctrines rest on a notoriously mixed bag of rationales, including protecting the expectations of users, who may or may not have been acting in good faith; promoting productive use of land; keeping title free of complications that may hinder transfer and investment; and obviating the need to decide cases on thin, stale evidence of ownership claims. But the doctrines themselves have remained a remarkably durable part of land law.

Copyright law has never had similar doctrines (nor has patent law). As long as the term of copyright remained relatively short, it arguably had little need for them. Copyrighted works were going to enter the public domain soon anyway -- after, at most, 28 or 42 or 56 years -- and they would enter the public domain even sooner if copyright holders didn't assert their continuing interest in the works by filing a renewal registration after 14 or 28 years. Now, however, copyright can last for 120 years or more, and has no renewal requirements. Thus, it is possible for a copyright owner to neglect to enforce copyright for decades, and then return and reassert ownership for decades more.

The history of "Happy Birthday to You" gives us a glimpse of what can happen when long copyright has no adverse-possession-like doctrine. The song was distributed widely for about 20 years from the early 1910s to the early 1930s without any permission from or enforcement by the Hill sisters or their publishers. It was during that period -- a period when the song was de facto in the public domain -- that it became THE standard birthday song in the United States. It is even conceivable that the lack of copyright enforcement contributed to the song's assumption of its central place in American culture. Then the putative copyright owners resurfaced and started claiming royalties, not for another decade or so until 1949, but, it now appears, for another 95 years until 2030.

The copyright community has started discussing the related and partially overlapping problem of "orphan works," but so far there's been no legislative progress on that front. The doctrine of adverse possession was actually a judicial creation, piggybacking on top of statutes of limitations. The copyright statute of limitations, however, is so short -- 3 years -- that it is unlikely that judges will ever read doctrines of adverse possession or prescription into it. The result is that copyright will likely increasingly face all of the problems -- clashing expectations, clouded title, stale evidence, use-inhibiting uncertainty -- that land ownership would have without those doctrines.

One comment earlier this week noted the evidentiary problems that arise as works under copyright get older and older. Some of those are inevitable. Others could be avoided with better Copyright Office recordkeeping policy, which has not kept up with the increasing copyright term. As I detail in my article, the Copyright Office has maintained a policy of discarding much correspondence and many deposits after a decade or two. In addition, there has never been a way for the public to learn when the Copyright Office has denied registration of a work, unless the dispute gets into the courts, because only successful registrations are assigned searchable numbers. I heard a rumor that there had been an unsuccessful attempt to register the "new" melody of "Happy Birthday to You," different from the melody of "Good Morning to All" only in that the quarter note to which "Good" was sung was split into two eighth notes to accommodate the word "Happy." The rumor is probably false, but since there's no way to search denied registrations . . . who knows?

With that, I'll conclude my series of posts about "the World's Most Popular Song." Thanks again to Eugene for giving me this opportunity, and to all of you who responded for your comments and discussion.

I havent' read all your posts, but what are "orphan works?" Ones in which we don't know who authored the piece, or ones in which we don't know who the copyright holders currently are (because of death of the author with no will or heirs, or whatever).
5.2.2008 7:18pm
Sean M:
A very interesting set of posts about the song! Thank you for coming by and sharing your knowledge with us.
5.2.2008 7:29pm
I heard a rumor that there had been an unsuccessful attempt to register the "new" melody of "Happy Birthday to You," different from the melody of "Good Morning to All" only in that the quarter note to which "Good" was sung was split into two eighth notes to accommodate the word "Happy." The rumor is probably false, but since there's no way to search denied registrations . . . who knows?
I have no idea what the law is on distinguishing one unique work from another. But if something as little as 2 eights instead of a quarter on the same tone makes the difference between an original work and a derivative work, then it shouldn't be difficult to copyright a zillion unique variants of any work. That would allow someone besides the original copyright holder to effective "lock in" the original copyright to a relatively economically worthless position.

The holder of the new copyrights could permit free public use of all the variants, and the original holder would have a difficult time proving just what work any alleged unlicensed user was actually using. Put another way, anyone could use one of the very similar works and successfully defend any action for unlicensed use by showing he didn't use the original work.

Another related method might be to simply rearrange the original in a minor key.
5.2.2008 7:52pm
Very interesting topic, and a great illustration of some serious problems within copyright, especially overreaching. Thanks for your posts!
5.2.2008 8:00pm
TechieLaw (mail) (www):
I'm not sure you're entirely correct when you say that there's been little progress on Orphan works:

Current Orphan Works Legislation in the House

Orphan Works Legislation in the Senate

Recent Congressional testimony on Orphan Works
5.2.2008 8:02pm
TechieLaw (mail) (www):
And while I'm posting links, see Richard Posner et al.'s economic analysis of indefinitely renewable copyright.

Short summary: Most works lose the vast majority of their value within a very short period of time. For those that are actually worth something, e.g. Mickey Mouse, let them renew indefinitely.

Indefinitely Renewable Copyright

Unfortunately, Posner's solution is probably prohibited by international treaties the US has joined, and it's doubtful that anybody will be able to add a sane registration requirement to copyright without massive protest from Europe. (By "sane" I mean a copyright regime that doesn't require registration for the first short period of protection, say 10-20 years, but requires it thereafter for a minimal fee, say $1.00. If somebody isn't even willing to spend $1.00 to protect their work, it may not be worth protecting.)
5.2.2008 8:07pm
Blue (mail):
I'm 39. I'm willing to bet that I will not see an additions to the public domain through time-expired copyright in my lifetime. It is utterly, utterly appalling.

The Mouse and other IP holders are just too powerful.
5.2.2008 11:49pm
Mary Katherine Day-Petrano (mail):
What's wrong with copyright law not having the types of claim cut-offs seen in traditional property law? It just means copyright law is more fair and accessible to disabled Americans. As far as the Copyright Office not providing a readily usable and accessible method of search access, I would think that is a federal agency violation of Sec. 504 &508 of the Rehabilitation Act of 1973, as amended.

But getting back to traditional property law, the idea of these fictions of stale claims, adverse possession, statutes of limitations, jurisdictional deadlines, etc., these are the result of hundreds of years of oppression of disabled Americans so long as these time limits are arbitrary (not linked to the time it takes for the particular task to meet the deadline for different disabilities) and structural barriers to access to pursue a claim designed to lock out disabled Americans from property ownership, property rights, wealth creation and accumulation, and access to the Courts.
5.3.2008 1:26am
Big Bill (mail):
Laches. You sit on your rights for a few years and you can kiss off recovering anything for patent infringement.
5.3.2008 3:23am
Kent G. Budge (mail) (www):
IANAL, but I think perpetual copyright is right out in this country, since the Constitution grants Congress power only to give authors exclusive rights to their works for a [i]limited[/i] time. Of course, I suppose a Supreme Court sufficiently sympathetic to copyright might find a creative way around that.

As a matter of policy, I think perpetual copyright [i]should[/i] be right out. I think the 120-year copyright period now possible in law is ludicrous. Of course, I have a selfish interest here: I'm a bit of an amateur historian, and I find it irritating that I have to worry about the copyright status of historical images from the Second World War. Sure, I could try to invoke fair use, but the law there is too murky for a non-lawyer like myself to take many chances.

I worry about analogies with land law. Again, as a non-lawyer, it strikes me that since writings and inventions have many of the economic characteristics of public goods, while land does not, such analogies are likely to go astray.
5.3.2008 2:28pm
Kent G. Budge (mail) (www):
Oh ... and, again, as a non-laywer ... can anyone here tell me what on earth Mary Katherine Day-Petrano is talking about?
5.3.2008 2:29pm
Another Kevin (mail):
Two eighth-notes? I've *never* heard the 'Happy' sung as two eighth-notes. Always a dotted-eighth and sixteenth.
5.3.2008 10:28pm
Desertlex (mail):
Budge - Unfortunately, because of the way the term "limited" is used by the SCOTUS, while Congress may not be able to make a copyright "perpetual" it could simply limit the copyright to a specific event or any ambiguously long period of time - say, the death of the Sun or the Earth which have parameters defined by the laws of nature that set the outer-limit of their age (presuming mankind does not advance to such a degree that he is able to engineer around those parameters - I can't wait until we get arguments based on relativistic effects or a unified field theory . . . ;-> ). Perhaps we'll find out what the term "limited" means at a table in the Restaurant at the End of the Universe.

The SCOTUS, in Eldred v. Ashcroft stated:

The Copyright Clause, in contrast, empowers Congress to define the scope of the substantive right. [citation] Judicial deference to such congressional definition is "but a corollary to the grant to Congress of any Article I power."

In other words, the Court basically states that "limited term" means whatever Congress says it is.
5.4.2008 1:25am