'Happy Birthday' song copyright is not valid, judge rules | Hacker News Reader

'Happy Birthday' song copyright is not valid, judge rules

latimes.com

Using Google Books, you can quickly find works much older than the 1922 citation in this case, and which contain "Happy Birthday to you" in its modern form. Here, for example, is one from 1911:

> https://books.google.com/books?id=TfoaAAAAYAAJ&pg=PA63&dq=%2...

    "Happy birthday to you,
     Happy birthday to you,
     Happy birthday, Dear John,
     Happy birthday to you."

It even says that it's sung to the "Good Morning" tune.

I believe the 1922 citation is relevant because it contains specific licensing information for "Happy Birthday", which the source you cite lacks. So the one you cite could have been printed without permission, and wouldn't constitute the Hill sisters abandoning copyright.

Even if it were being used without permission, the fact that it could be used at all in 1911 suggests that it is too old to be covered by copyright, doesn't it?

Copyright is supposed to be limited, but eh you know, somebody who descends from someone who around the 1911s wrote a one song, honestly, really, still very much deserves money for their hard work.

Otherwise those guys back in 1911 will go back in time and undo what they've done, because it was clearly not worth it.

Back in the real world, modern copyright is pretty messed up.

That would make a fascinating scifi novel.

Or an episode of Rick and Morty.

Dan Harmon has said he doesn't want to do time travel plots in Rick and Morty.

Or sub-plot line in a Bill & Ted adventure.

I assume you're referring to the rule that works from before 1923 are all in the public domain. Apparently the rule is all works that were copyrighted before 1923 are in the public domain.

A work is considered to have been copyrighted before 1923 if it was published:

* in an authorized publication

* in the United States

* before 1923

* and had a proper copyright notice

The sticking point here is that the purported owners of the copyright claim that the 1911 publication of Happy Birthday to You was unauthorized. Therefore, since the first authorized publication was in 1935, the copyright should run from that date.

http://blog.librarylaw.com/librarylaw/2009/07/the-myth-of-th...

I'm not a lawyer but what you say contradicts with the following source:

https://copyright.cornell.edu/resources/publicdomain.cfm

It clearly states that all works from before 1923 are all in the public domain.

I think the key here is the table heading is "Works Registered or First Published in the U.S", I assume they mean that the first publication is authorized.

I don't think so, it really is just registered or published. There are cases where the copyright notice matters, but they are handled with care in this listing.

The first footnote in your linked page contains a link to an explanation of the charts by their original author:

http://www.infotoday.com/searcher/sep12/Hirtle--When-Is-1923...

On this page, in section 4, "The myth of the pre-1923 public domain", there is an explanation about authorized publication:

"For publication to have occurred, the work must be issued with the authorization of the copyright owner. A “pirated” copy of a work published in 1922 without the copyright owner’s authorization is, for the purpose of copyright, considered to be unpublished. If a copyright owner subsequently authorized publication in, say, 1970, the work received a 95- year term starting on that date. Reproducing or otherwise using the 1922 work in a way that implicates one of the rights of copyright would infringe on the copyrights established by authorized publication in 1970."

It goes on to specifically reference Happy Birthday to You as an example of this principle.

This clears that up, thanks.

That makes the ruling even more interesting. If Warner doesn't own the copyright, they don't have standing to say the 1911 publication was unauthorized.

In order to argue that, wouldn't they have to show that they authored the song well before 1911, but didn't publish it, and that somebody else somehow found their unpublished song and stole it? Because otherwise, it sounds like the 1911 "Happy Birthday" is either an independent creation or else they took the song from the 1911 author.

This particular source is apparently well-known -- it is cited in http://www.ipwatchdog.com/2014/08/05/happy-birthday-to-you-c... as the first publication of "Happy birthday to you". If you could find other works much older than 1922, that would be very interesting.

A summary of the argument is in the judge's order:

"The distinction between the music and the lyrics as copyrightable elements is critical in this case because both Parties agree that the Happy Birthday melody was borrowed from Good Morning and entered the public domain a long time ago. The Parties disagree only about the status of the Happy Birthday lyrics. Defendants contend, in brief, that the Hill sisters authored the lyrics to Happy Birthday around the turn of the last century, held onto the common law rights for several decades, and then transferred them to Summy Co., which published and registered them for a federal copyright in 1935. Plaintiffs challenge nearly every aspect of this narrative. They argue that the lyrics may have been written by someone else, the common law copyrights in the lyrics were lost due to general publication or abandonment before the lyrics were published, and the rights were never transferred to Summy Co."

Page 10: https://www.unitedstatescourts.org/federal/cacd/564772/244-0...

The real holding (the dispositive part) is this: "Because Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.'s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics".

And to be somewhat pedantic (an occupational hazard of being a lawyer), the judge didn't hold that the copyright was invalid per se, only that Warner can't prove that they own the copyright. I doubt anyone else would be able to prove in 2015 that they own the copyright to Happy Birthday, but the possibility is open.

Haven't read the order, but your analysis suggests that its an orphaned work. Which leads one to a whole other problem with copyright law...

That's what I was thinking when I read the article. Still, although it seems it'd be (most likely) technically an orphaned work, the circumstances mean that it most likely is a de facto public-domain work, I would think.

I suspect Warner/Chappell irritated the judge by trying to play fast and loose with the discovery process - up to that point the plaintiff's case was built around an argument of constructive abandonment that he seemed somewhat cool towards, but the coincidence of late production and 'accidental' smearing of probative text during the scanning of one particular document were middle-school moves.

There are several key issues that are undecided by the court. The most notable is who owned the common-law copyright (or the first right to publish) the lyrics. It's unclear in this instance, but the presumption is that it's the Hill sisters.

Whoever owned that copyright continued to do so until first (authorized) publication or January 1, 1978, where it follows the rules (most likely from first creation, since it's an expires-first rule). The expiration is the death of the last author + 70 years (2016, if the Hill sisters created it) or 120 years from at most 1911 (if it's anonymous, since we know it had to be created before 1911 by a (presumably unauthorized if this is to apply) publication).

If there was an authorized publication, then it's public domain if there's no copyright notice. If there's a copyright notice, then it's still copyrighted today only if all the rules were followed, which is pretty unlikely at this point. The existence of the 1922 Everyday Song Book may or may not constitute this publication, and the notice may or may not constitute a legal copyright notice (it was never decided by the judgement, only that the question requires a trial to determine the answer).

From the record, it seems likely that the Hill sisters owned the copyright, but considered it abandoned and so never actually published it. However, they probably didn't actually legally lose their copyright, so it follows the 1976 copyright act rules, which means that the copyright is now held by their heirs and will expire next year. Of course, if said heirs wish to try to enforce the copyright, they will have to actually prove all of the findings of fact to make it the case, which is probably not worth the burden given the time left.

You can't blame Warner, they're obviously just protecting artists rights to be creative and innovate.

I mean, I agree with your sarcasm. But on the other hand, you're kinda right—instead of everyone singing the same Happy Birthday song, every movie and chain restaurant has to come up with their own version. And maybe one of them would have been better, and caught on instead. Of course, they all were terrible.

They weren't traditional. As simplistic and potentially annoying as the traditional "Happy Birthday" song was and is, it's part of the birthday tradition shared by a lot of English-speaking people, so it's special.

It's simply special, and nothing can replace it.

Ideally, works should be public domain long before they're traditional to that extent. It's just creepy for a company to assert ownership rights on some piece of culture that's been passed down through your family for generations.

That's a peculiar way to disincentive success. Hope to be successful enough to make some royalties, but not so successful as to be traditional because then you get nothing.

Well, you still get the satisfaction of creating a deeply ingrained cultural phenomenon.

Well, I do believe that a work can become so important that it shouldn't be copyrighted anymore. The most notable example is Martin Luther King's "I Have a Dream" speech, which is a national artifact more important than anything in the Smithsonian. It should be freely distributable to everyone in America who wants to watch it, instead it is under enforced copyright. Perhaps the government should purchase the copyright using eminent domain in cases like this.

Woah I haven't ever considered the possibility of applying eminent domain to copyright brb mind blown.

That seems... incredibly reasonable and helpful.

(no sarcasm)

MLK could have dedicated the speech to public domain, had he so wished. Again, "if we like your speech we're going to take it" -> not a great incentive.

On the other hand, are you going to argue that the existence of copyright is what caused MLK to write said speech? In the absence of copyright, we never would have had the "I have a dream" speech?

Except Dr. King didn't write the speech. From Wikipedia:

"The speech was drafted with the assistance of Stanley Levison and Clarence Benjamin Jones[17] in Riverdale, New York City. Jones has said that "the logistical preparations for the march were so burdensome that the speech was not a priority for us" and that, "on the evening of Tuesday, Aug. 27, [12 hours before the March] Martin still didn't know what he was going to say"."

I'm not so sure these people would appreciate the fact that you think they should work without being compensated for it, or that somehow, compensation and/or ownership isn't a good reason to do something.

I suspect the primary compensation they hoped to get for that particular speech was _not_ financial.

People who write songs and materials for Churches do it to make a living. It's actually a big problem for folks who write songs and arrangements for Church Choirs--many of their customers don't feel they should be paid! I've been to conferences at Music and Musician trade shows where this very issue is discussed.

Right, and work for hire means a writer gets paid one time to do the job, and the residuals are owned by whomever hired the person do write the speech / book / song / lyrics / tambourine solo.

Doesn't matter if it's churches or playing in jazz clubs, writing and making music for a living is a tough business. I've worked some churches that paid quite well - at least industry standard - and I could go online now on CraigsList and find 5+ requests per day asking for music volunteers because religion. In my experience, churches are simply another ill-informed group that frequently want all the benefits of live music without compensating for it. Same goes for well-meaning volunteer organizations.

> many of their customers don't feel they should be paid

This happens to physical products too, I don't see how specific individuals not wanting to pay for something has any bearing on the existence / effectiveness of copyright.

Well, firstly speech-writers normally are compensated...they're paid for their work when they do it.

Secondly, they're not the beneficiaries of the copyright: it belongs to the King estate.

The argument for Copyright is that is incentivizes people to create things (e.g. musicians to write songs).

Are you stating that without copyright no one would write speeches? Would people have just abandoned the Civil Rights movement because of a lack of copyright? That seems like an extreme view.

Actually, in US copyright law, it is possible for works to effectively lose their copyright. One of the elements of fair use (note: most jurisdictions do not have a fair use defense, so this only applies to the US) is that some things can become so important to the public interest that any reproduction is effectively fair use. The most notable use of this claim is the Zapruder film of JFK's assassination.

No, you're successful enough to make some money, not necessarily a huge amount.

Have you read the Constitution recently?

> To promote the Progress of Science and useful Arts, < by securing for limited Times to Authors and Inventors > the exclusive Right to their respective Writings and Discoveries.

The whole point of the system is to encourage products that are successful enough to make some royalties and then become public domain.

I think strangely, we are not hearing so much about the original inventors from the 20's, we should ask them what they think about that.

If you get to the point where your song is sung at every single English-speaking home at every birthday, you have effectively captured all the market. You cannot get more successful. You reached the end game, the top score, there is no more growth to be had. The oil well has dried up and the gold mine is empty. You are standing at the end of profit.

But it takes a good bit of time for something to become "traditional"; long enough that it becomes hard to figure out who, exactly, owns the copyright to what, as in this case. Limiting the term of copyright also has a function of promoting legal certainty: with relatively short terms, if there's a controversy, the court can have living witnesses and a fairly complete record, vs. a few strands of unconclusive evidence like here.

And let's not forget the adorable Futurama version, "What Day is Today?"

> And maybe one of them would have been better, and caught on instead

A new version would never catch on, because it would be under valid copyright.

Sounds like an awesome marketing opportunity for some kids friendly chain restaurant. Hire someone to write a new, catchy song and give the song away. Perhaps for TV and movies, require a small product placement deal.

I'd probably try said product just because they did something I agree with...

For 100 years though?

Not that I don't agree with you, but in my family we always sang this one: https://www.youtube.com/watch?v=mIRtrR7LW7g

The traditional lyrics just seem a bit bland compared with all that sweetness.

Sorry that this is sarcastic. I've always found it to be a problematic claim that without copyright, patents and other 17th/18th century "intellectual property" constructs we would not be motivated to create art, new technology, etc. All engineers, artists I have met only become informed of these contracts well after creating or innovating new art and technology. The only people taking advantage of these systems are at the end of any perceptual innovation (lawyers, lawyer driven predatory corporations, large corporations)

Devils advocate, the only reason for that last part is because patent and copyright are only useful at the point where enough money is flowing around that lawyers are involved. Artists definitely care if someone steals their work, but you don't usually hear about that happening because copyright exists. You know all the hubub about certain comedians stealing jokes from other comedians? That's a realm with no copyright/patent equivalent.

For all the "hubub", it doesn't seem to have stopped new comedic acts being being written?

Same with the fashion industry, where some people are trying really hard to bring copyright in despite the fact that it's much more profitable without it than the entire media industry.

Or maybe because they are less able to protect their works, there are fewer people being motivated to participate in the comedy (and as mentioned by sibling comment, fashion) industries?

The premise of copyright is not causing but promoting creation of works. Subtle but important distinction. Nobody said there would be no creation without copyright, just that there would be more with it.

There's seems to be quite high supplies of both comedy and fashion in today's world.

Before imposing a system of copyright to "promote" them, you'd want to be EXTREMELY fucking sure that a) the quality/quantity will go up b) you're fine with massive new amounts of money being siphoned into rent-seeking industries (legal, rights holding companies, etc) c) you don't create side-effects that actually decrease output and/or lower quality

There certainly aren't many good ones. And even if you don't care about the quality of comedy, any layman can compare the comedy industry to another industry that does have such protections, like, say, film or software, and see a huge gap.

Stewart Lee handled this beautifully in his 90's Comedian show when Joe Pasquale stole some of his material. He made a joke Pasquale couldn't steal, which involved, among other things, vomiting into the gaping anus of Christ.

Really minor nitpick/trivia point: I think Stewart Lee said that Joe Pasquale stole some of Michael Redmond (another comedian)'s material, not Stewart Lee's.

Definitely agree that Stewart Lee's bit on this is genius, though!

Thank you, I have tried to come up with industries without practically any IP protection. Now I have two. Comedy and Financial engineering. Funnily enough, I do not feel deprived of comedy, and what comes to financial innovations, I would argue that their supply is actually more than sufficient. (Maybe, just maybe, we should allow patents for financial instruments just for the sake of limiting the speed of development of those)

Clothing also. You cannot copyright an item of clothing, or even a particular cut. Only specific trademarkable additions, such as labelling and, for instance, the specific stitch pattern Levis do on the back pocket of their jeans.

I don't feel deprived of comedy in general because anyone can redistribute some list of a few hundred jokes without repercussion. Good comedy, however, is hard to come by. I've heard it all before and now I need to look for niche domains like language intersection to find novel jokes.

Most people want to do things that they believe are worth doing for their own sake. Only those who gain property for the sake of gaining more property benefit from the current system, and they are given all the power because relations of ownership take precedence over all other concerns in the ideal conception of this system. So the ideology must claim that the system is for the benefit of all because the accumulation of profit/property is the motive of all, and that no one does anything useful for its own sake. To fail to do so invites questioning the primacy of property in determining the organization of society.

It isn't about individuals though. It is about having a sructure that makes large scale, cooperative projects possible. If you are going to have ventures where large groups of people work a significant amount of time together to create something new you need either state funding, state protection of end result or to rely on some sponsorship program.

For instance - medical research into new drugs isn't something that you sit down and think "I guess I'll do a few hours on the side" right? It is a multi year, multi people job. Either that is state funded, sponsor funded, or you can make money on the end product to pay for costs.

I think your reasoning takes property as a given. Discard property, and it becomes much more of an open question how to organize large cooperative projects.

Ummm, I run a small business, and I take advantage of intellectual property rights. Of course, you have no idea who I am, so why would my rights matter to you?

If all the intellectual property rights went away tomorrow, would you shut down your business because it would no longer be a worthwhile endeavor? (honest question, not sarcastic)

I would not start mine.

I know a number of devs who gave up because piracy - often justified on the basis that "copyright is teh stupid" - made it impossible for them to continue working on cool stuff and still pay the bills.

But on the other anecdatal hand, there are plenty of devs who accept that piracy exists and manage just fine, e.g. Jeff Vogel

http://jeff-vogel.blogspot.co.uk/2010/07/sometimes-its-ok-to...

And yet, it's been demonstrated again and again with Steam, Netflix, Spotify, etc. that people are willing to pay for content if the price isn't outrageous.

For example, people are willing to pay for Spotify which with moderate average daily use (3 hours) is about 45 songs a day which comes out to $0.007 a song. Very few artists would be willing to admit that's how much their songs are really worth unless the listener is already a die-hard fan.

Nearly every popular game on Steam can be pirated with enough effort and yet Steam sales are practically a national holiday.

Piracy, like everything else has a cost, which can be beaten by good business rather than government control.

Even if he did, wouldn't we be better off on the whole?

I have some idea why some people would have to shut down if copyright went away, but I have quibbles with the ethics of their business model anyway.

In my case "I get paid to write that which does not exist yet", and in theory that wouldn't change much whether copyright continued to exist or not.

(Abolishment immediately without warning would lead to some messy issues that don't fit in the margin of this post. The reason is simply that everyone is used to the current situation. But it'd sort itself out after a year or two. )

The way I see it, IP is a useful short-term tool to encourage the creation of new ideas, but if used long-term, it stifles creativity in others and takes away some of the incentive for the owner to continue creating.

It's like taxes. Set them to 0% or 100%, and society can't function.

So can we all "get out money back" for Warner keeping this out of the public domain for so long?

The claim is not really about "motivating" people to create, but making it easier to make a living off their works. People may well create new technology and art for other motivations, but ask yourself: how do they make a living, and would this income be likely if there was no way of protecting their works (whether the protection is enforced by themselves or their employers)? If they don't care about making a living out of their works, it's just a hobby, but the world is not run on hobbies.

There are studies on these kinds of things. The picture is quite complex for patent systems, where economists struggle to prove whether we're better off with them or we'd be better off without them. There is no such question about the need for a copyright system though -- most studies are more about how much copyright protection is enough.

>> The claim is not really about "motivating" people to create, but making it easier to make a living off their works.

Ask a random author, musician, or artist how easy it is to make a living, and how much copyright law helps them. And if you do get a positive response, ask how having it apply for more than 10 years helps them.

> And if you do get a positive response, ask how having it apply for more than 10 years helps them.

They did say, "most studies are more about how much copyright protection is enough", to be accurate. :/

Right, most studies don't question the need for copyright at all, just how it should be tweaked to be optimal.

I think a history of copyright was posted here (from Ars?) not long ago, and it showed the greatest ralliers for copyright were not original artists, but publishers and distributors.

With the advent of the printing press, publishers lost their monopoly over the once labor intensive reproduction of texts, so they pleaded that authors should be granted license over the products of their effort to protect and inspire creation of future works, so that they didn't meet the same fate as the publishers. Instead, publishers, still in control of their distribution monopolies, began requiring exclusive use of those licenses, and by using the printing press themselves, saved all of the effort and expense while preventing artists from profiting beyond the transfer of licenses to them.

There's more than one industry in existence today whose business is being middlemen, and with the increasing ubiquity of internet, online marketplaces, and digital appliances, it's become difficult to justify that these rules not change except by that same old argument- but we won't be needed if you do!

They are very much needed - just ask anyone who tries to go without. If they wouldn't be interested in doing business without the legal framework that currently exists, why is that an invalid argument? The "talent" is not the only one involved in bringing a creative work to consumers for them to enjoy.

I agree. Indeed, although most of the copyright stuff out there is driven by profit-hungry companies, the fact still remains that it is still a valuable protection for artists.

For example, if a photographer takes a picture of something and posts it to their online website, without copyright anyone could just up and steal it and claim it as their own, and there'd be nothing the artist could do about it.

Same thing for writers. And video directors. And musicians. Etc.

Yes, it's misused and could use a lot of improvements; however, it's here for a good reason.

Bottom Line: You can improve something without completely getting rid of it. Creative Commons (CC) is a great example of this; it allows for open sharing yet maintains attribution. This protects the artists whilst dismantling any motivation for publishers/distributors/other_companies to be copyright sharks about it.

Shakespeare, web comics, and fan fiction have all have produced and distributed plenty of good content without meaningful copyright protection.

I suspect a world without copyright would look a lot more like the sistine chapel than it's defenders want to admit.

PS: I would accept Movies as a good counter argument except even 10 years of protection is overkill in most cases due to both the diminishing income streams and time value of money.

Funny that you should mention web comics and fanfic because I spent a substantial amount of time going through websites dedicated to both for a few years, and I can tell you that the vast majority of the content was unmitigated drek. There certainly was a lot of content, but "good" content? Like a diamond in the rough. That's the reason I stopped visiting those sites.

The internet has certainly made it easier to get content out there. But it has also made it very evident how rare good talent actually is. The good ones deserve to be able to be rewarded for their work so they can continue to produce more, and unless someone comes up with a better system, copyright is what we have.

There are over 700,000 HP hp fanfiction works out there chances are most people who liked the series could find 10 that they liked without reading most of them. Traditional publishing's has kept a lid on things easily stopping the bottom 95%, but there are plenty of terrible books out there so you still need a way to find the good ones.

Minimally biased raiting systems seem like an effective way to seperate the dreck. Yet, paid content has huge incentives to game the system, but with unpaid content that's far less of an issue.

The MAFIAA is here for everyone's benefit, of course: http://mafiaa.org/

Phew! Now I can start singing "Happy Birthday" to my friends and family instead of Stravinsky's "Greeting Prelude!" https://www.youtube.com/watch?v=OJAEepA0nPk

There is also this: https://www.youtube.com/watch?v=2f2PCWYAZQc

I prefer http://youtu.be/8H8e-2TLgpA

What's wrong with "For he's a jolly good fellow"?

People all over the world can sing "Happy Birthday", but you’ll get just weird looks from most for "For he's a jolly good fellow"?

That's pretty Amerocentric of you.

Eh, I'm German – and saying, people here will sing "Happy Birthday" with english lyrics, but not "For he's a jolly good fellow".

That's really strange to me! Do the Germans not have some analogue of "Happy Birthday"?

Yes, we do have some analogues, but I don't think they're used anymore that much.

The latter is definitely under copyright though.

Well, the lyrics were what was being questioned, not the music...

Fyi, for anyone that has paid for a license. The fact that the copyright is dead does not necessarily mean licensing contracts are also void.

The obligations of contracts can and sometimes do survive the disappearance of underlying IP rights. If someone agreed to pay Warner 10$ for the right to sing Happy Birthday each time their movie airs on TV, that contract is likely still in effect. Consideration (what one party gives in a contract) is measured at the point of formation, not years later. An agreement to not to sue someone is not premised on the validity of that theoretical lawsuit. An agreement to not attempt something is still an agreement even if said attempt would prove futile. There are cases where a contracting party has been forced to shell out for something anyone else could use for free. So if anyone reading this has signed a licensing agreement, talk to your lawyer before ripping it up.

On the other hand there's now the option to pursue them in court for recovery of all the royalties already paid, since they didn't have the right to claim them in the first place. I think we'll be seeing a lot of that in the near future.

Only if they sold something they knew they did not own. Then there is a debate re fraud. But such arguments only work where they attempted to sell an actual license. If they simply agreed not to sue, forbearance rather than license, those contracts may well remain valid.

Not a lawyer, but here's how I see it:

Lawsuit: "You approached me and gave me false information that has cost me money. Pay me to cover all my losses resulting from this false information."

How (or even whether) the defendent benefited from the losses doesn't even need to come into it, as far as I can tell.

Which is probably why they mentioned starting a class action lawsuit based on this ruling.

Any citations?

Why would I agree to pay someone per performance, instead of paying someone for a license to each performance?

If I break the license agreement, Warner can void my license, and then pursue their copyright claim against me.

The classic case involves the mouthwash Listerine. The guy who invented it kept it as a trade secret (no patent). He formed a contract with a manufacturer that said, in short, that they would pay him money for each bottle sold using the formula. They all thought this would go on forever. But then the secret got out and others started selling products using the same formula. Since there was no tradesecret anymore the manufacture argued the contract was void. It wasn't.

"But that does not mean that one who acquires a secret formula or a trade secret through a valid and binding contract is then enabled to escape from an obligation to which he bound himself simply because the secret is discovered by a third party or by the general public."

Warner-Lambert v. Reynolds 178 F. Supp. 655 (1959) http://law.justia.com/cases/federal/district-courts/FSupp/17...

Now this is tradesecret, not copyright, and an old case, but the principal remains. Contracts can be drafted between parties that go beyond the rights created by IP law. Any attorney worth his wage learned of this quirk of contract law during school and should have drafted any licensing agreements to accommodate ... but just maybe they didn't.

But in the case of Happy Birthday licenses the contract would have been agreed to on false pretense, wouldn't that count for something?

Looks like a fine line - it seems elsewhere sandworm is pointing out that Warner would have to engage in fraud, or willful deception, in order to validate the contract.

The wrinkle I'd like to consider is that if Warner provided the evidence during discovery that was material to the copyright being ruled abandoned, meaning it was in their possession all along, then does willful ignorance manifested in strong-arming payment for the rights to lyrics un-owned matter? Hmmm.

They did. Very late. And they most likely deliberately 'smeared' the one part of the page that showed that they had, all along, evidence that they did not own the copyright.

It seems the takeaway is that if you're going to sign a contract because you're concerned about copyright/patent infringement, then you should get an IP lawyer because law is weird (and also make sure they're aware if you think there's an question about the validity of the copyright/patent claim).

"Fyi, for anyone that has paid for a license. The fact that the copyright is dead does not necessarily mean licensing contracts are also void. "

Well, this is true for copyrights, but 100% false for patents. You cannot collect royalties for expired patents, for example. Attempts to do so by contract are void.

But you can keep royalties received on patents that are later found to be invalid, which I think is what the parent is trying to say.

Yes. And if you have an agreement that makes no mention of the patent, that just says "I will give you money every time I sell a product" then you may still have to shell out long after the patent has expired. Everyone is free to draft contracts between parties going well beyond the limits of IP law.

That means the payer is getting something else besides the right to use the patent. So whatever product or service the payee is providing, they have to continue providing it even though their patent is invalid. That doesnt seem like such a problem, except for the fact that when the contract was drafted, there may have been less competition for the service the payee offered.

You have to actually get something in return for this to be a valid contract. If it's not IP rights, what is it?

Because otherwise, i'd just breach the contract. In fact, this is what has happened in numerous cases.

Sure, but actually, most patent agreements that get signed nowadays include clauses to deal with this :)

You can via contract. If I invent a new super-viagra, I can ask a drug company to pay me 1$ for each pill they sell in perpetuity. That contractual obligation could survive the patent expiring and maybe a drug company would take that deal in exchange for them being the first on the market.

100% false if these are found to be patent royalties.

This was most recently reaffirmed in June when the supreme court denied cert in Kimble v. Marvel.

This rule has been in place since Brulotte et al. v. Thys Co., which addressed this question square on.

Past that you are basically saying "you can try to contract around and pretend it's not patent royalties"

This is, of course, true in theory, but this doesn't really work in practice.

This is why patent trolls and others don't actually do it. Because a judge will look at you sideways, and then just let me out of the agreement or give you no damages when i breach it.

Which is why one must be careful in wording agreements to make sure they are license agreements (renting a thing) rather than forbearance (promise not to sue). Now if I were working for someone who had a shady possibly invalid copyright, I might attempt to draft a forbearance-style agreement. I've been hunting around for HappyBirthday agreements to check for this but haven't found any recent actual documents, just summaries.

While I think what you are saying is true it would depend on whether the wording of the contract said they owned the copyright. I guess that's what you meant by "does not necessarily mean".

> The fact that the copyright is dead does not necessarily mean licensing contracts are also void.

i.e. licensing something you don't own and have no rights to is fine, legally speaking.

The more I learn about the law, the more bizarre it is.

So a quick summary of the ruling:

This was a movement for summary judgment which requires a very high standard: they are basically responding to a threat of a lawsuit by asking a judge to declare in advance that this lawsuit can never truly happen; effectively they are asking a judge to affirm that the threat is really, truly BS.

They gave a lot of reasons why the lawsuit might be invalid from the get-go, from "how do we know that the purported author was actually the first to write this?" to "how do we know that she didn't abandon her copyright interest before the critical date?"... but for a summary judgment, you don't need to show what's true but rather what's arguable. The judge denies the vast majority of these complaints by saying that even though the plaintiffs might have given some good evidence that those things are what happened, they didn't show that it was inarguable.

The sticking point is that the copyright today is only on the words, not the melody and various arrangements, which have long since passed into the public domain. However, according to the judge, there is absolutely no evidence that the copyright for the words was ever transferred to that company alongside the words. References to the various lost agreements between the parties generally explicitly say that they were agreements to transfer the music, and make no explicit mention of lyrics; and the lawsuits that the company began litigating similarly complained about the use of melodies or arrangements rather than complaining about the words being used. On this one narrow point the judge said, "no, that's inarguable: there is no argument that in all of this evidence you've brought me, that there is nothing transferring lyrical rights to the company.

> no evidence that the copyright for the words was ever transferred to that company alongside the words

I'm guessing that was meant to be "[...] alongside the melody"?

Since the copyright of the song is proven not to be valid, please pay any any revenues that you ripped off people back to them (including interest) or if it proves to be too complicated to find them all, at least transfer this money into a fund for helping people defend against dubious copyright claims.

Thanks.

Then let me be the first to draw clearly from the public domain:

Happy birthday to you

Happy birthday dear [someone]

Happy birthday to you!

(I hope the ruling doesn't get reversed and let Warner come after me)

technically its not in the public domain, it's an orphan work, since the ruling says warner had no grounds to claim ownership of the copyright on the famous arrangement. someone can still come forward and present the evidence that secures them the copyright until the end of its term

https://en.wikipedia.org/wiki/Orphan_works

There are multiple issues, and today's ruling only seems to have covered one of them (namely, whether the Warner/Chappell copyright covers the song, or just an arrangement of the song -- the judge ruled it was the latter, which leaves Warner/Chappell without a copyright claim to the song).

The next important step is a piece of evidence unearthed during discovery in this lawsuit: a songbook, whose fourth edition from 1922 contains the lyrics of "Happy Birthday". Since the lyrics had been published in 1922, and the melody is known to date to the 1890s, there is no way for either to currently be protected by copyright in the United States, as all copyrights dating from prior to 1923 are conclusively known to have expired.

Off by just a year, what a crazy coincidence.

Given that 1922 was the fourth edition, it's likely that the lyrics were actually published earlier. It's just that you don't need to go back further, since once you reach a date earlier than 1923 you know it's public domain.

Well, unless they decide to retroactively extend copyright and bring works that were once open back under copyright...

I read that in Micky Mouse's voice.

Is it, or is that just the most likely year anyone would start their search for prior art?

> someone can still come forward and present the evidence that secures them the copyright until the end of its term

You mean with the current copyright regime, whoever manages to produce good enough forged evidence, can collect on this forever?

Because it's well known that copyright no longer expires. And that means there's no end of term either.

Does that mean Warner infringed on copyrights and should probably be punished for it?

>that secures them the copyright until the end of its term

Practically, once you are granted copyright it's secured until Disney goes out of business thanks to the Mickey Mouse Protection Act[1] and inevitable future Disney lobbying.

[1] https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

I hope our favorite fast casual dining establishments carry on the tradition of singing bad and awkward “Happy Birthday To You” substitutes in spite of this

I'm not sure which is worse: that this ancient song is/was still "protected" by copyright, or that Warner has been able to collect so many millions without a valid copyright claim.

So we can finally see birthday songs in television and movies now instead of the awkward work-arounds. Good.

i think i know what you're talking about, but do you have any youtube links or know any search queries to find them?

https://vimeo.com/55555820

Or just Google "TV Birthday songs."

one of my favorites is Community's cold open - https://www.youtube.com/watch?v=wwQsSLeVlmg

One of my favorite scenes in Sports Night:

---

Dan Rydell: I've got the intellectual property cops crawling up my butt.

Isaac: The intellectual property cops?

Dan Rydell: Yeah.

Isaac: Are crawling up your butt?

Dan Rydell: The heat's all over me.

Isaac: What the hell are you talkin' about, Dan?

Dan Rydell: I sang happy birthday to Casey on air.

Isaac: When?

Dan Rydell: Well, on his birthday, Isaac...

Isaac: Someone holds the copyright to "Happy Birthday"?

Dan Rydell: The representatives of Patty and Mildred Hill.

Isaac: Took two people to write that song?

Dan Rydell: Go figure.

It's even more impressive since they only claim the lyrics - the melody came from an earlier song called "Good Morning". And since there were two sisters and only four unique words in the song that's basically two words per sister.

Only 2 of the words are unique to HBTY. The others are taken from GMTU

So?

So they each wrote one word. One and a half if you count "dear".

It's five words, you forgot the "dear"

There's just always been something grating to me about the cadence of Sorkin's "warring dialogue". It's very distinctive and it just rubs me the wrong way, you can always see it on programs where he was a writer. Disappointing because he's involved with a lot of good stuff.

See linksbro's comment about the song still being under copyright, just not Time Warner's.

XKCD is celebrating the event: http://xkcd.com/1581/

Someone needs to call Jason Scott and the Archive Team to save all of the ersatz Happy Birthday songs sung at restaurants. "Oh, you're at the Olive Garden and you're having lots of fun! It's your birthday birthday, and you're number one!"

> ...a copyright filed by the Summy Co. in 1935 granted only the rights to specific arrangements of the music, not the actual song.... "Because Summy Co. never acquired the rights to the Happy Birthday lyrics," wrote King, "Defendants, as Summy Co.'s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics."

So the lyrics are not covered, but is the melody?

The melody is the melody from "Good Morning to You" which dates to 1893.

So let me get this straight. Humming the birthday song without actually singing the words was perfectly acceptable for public performances since 1988? (1893 + 95 years)

The copyright on all works issued prior to 1923 expired no later than December 31, 1978 if my reading of this PDF [0] from the U.S. Copyright Office is correct. In particular, if the melody had a copyright date of 1893, it would've expired no later than December 31, 1949, because copyrights could only be held for a maximum of 56 years (one 28-year initial term and the potential for one 28-year renewal).

[0] http://www.copyright.gov/circs/circ15a.pdf

Yeah, pretty much from what I understand. If somebody can't tell the difference between "Good Morning to You" and "Happy Birthday to You" based on the melody line, then no sweat!

Assuming this ruling stands, does anybody know if the people who previously paid for a license to use Happy Birthday can get their money back?

EDIT: See below. Apparently the plaintiff's attorneys intend to try.

If they could demonstrate that the licensor knew that the copyright was suspect then they might have a case for misrepresentation or fraud. Given the potential amount of money involved I'm sure some lawyer will give it a go.

Given facts like the copies of the original score had a big 'smudge' over the copyright line that clearly proved that Warner Bros never had any claim to things (which isn't visible in the original, that clearly reads), there's a decent case to be made for bad faith.

WB has milked this for years and made millions, knowing it had zero right to the song.

That was the point of the class action mentioned in the article.

Ah, I see that. The article has been updated since first posted and is much longer now. Thanks for pointing it out.

I suppose like most class-action suits, each participant will get about $0.43 and only the lawyer will really benefit.

But in this case, it's still a great thing, as the main goal is punitive, to make copyright vultures feel some pain...

It's nice to see a sane IP ruling for once.

As a note, this is why they sing the song, Oh He's a Jolly Good Fellow in a lot of movies instead of Happy Birthday.

This includes "Happy birthday, Mr. President"?

Has it been invalidated in the EU?

Oddly enough, the expiration date of a copyright is a birthday of sorts.

ah sorry. updated to "will expire".

If it only covers the words, then can we still sing Paljon Onnea Vaan in Finnish?

https://www.youtube.com/watch?v=4FI6c_r3dKg

My hunch is that a translation is obviously a derivative, therefore you cannot.

Edit: of course now you can, but before this ruling you couldn't. Or to be pedantic, you still can't, but there's noone to stop you.

Does American copyright law really extend to Finland? (I assume few people sing the Finnish version in the US...)

"I guess I need to apologize to my parents, friends, and the staff at Chuck E. Cheese's for all the times I called the cops on them."

— title text from today's XCKD http://xkcd.com/1581/

Does anyone know if this judgement is valid nation-wide, or if it only covers a single circuit? Is there any possibility of appeal?

It is a lower court judgment. It is not final, meaning Warner can (and probably will) appeal to a circuit court. Until all the appeals run out, the judgment is not final. Once the judgment is final (because Warner does not appeal or because they lose all appeals), it will have preclusive effect nationwide.

You have to wonder if the copyright would have been allowed to be invalidated if it wasn't due to expire next year anyway.

The weird thing about the song is that it's just so clunky. When you hear it out of context it's pretty horrible.

wasn't this already 'de facto' invalid?

i appreciate this downvote, but millions of people have violated this copyright unknowningly... afaik this makes it invalide 'de facto' if not 'de jure'.

Trademark can be lost if not enforced, not copyright.

any law is unreasonable to enforce if the vast majority would break it unknowningly. this is the point of making the distinction between 'by the letter of the law' and 'in reality'.

You can still enforce that law against people you don't like..

You can’t in some jurisdictions.

If something does not violate the constitution, and it has always been done in a specific way, then, unless a law directly targets it, it stays legal. (in Germany). Called Traditional law, or Traditionsrecht.

IANAL.

(Just to be clear, I'm not one of the people that downvoted you.. seems like a silly thing to downvote on when a response is much more useful to everyone).

not really, this is the difference between 'de jure' - by the letter of the law, and 'de facto' - which is what actually happens.

the fact that millions of people unwittingly breach this copyright has made it unenforceable in those cases. you would expect any sane judge to throw such a case out... even before this ruling.

It isn't "de facto" legal if the owner decides to pursue it or not.

The problem is the lack of knowledge of rights associated with intellectual property.

Many people make their bulletin board flyers by searching a related term on Google Images and pasting it into their document, without any thought to the licensing or knowledge that they might need a license. Despite that they are not likely to face legal consequences, it doesn't erase the copyright holders' rights to their image -- even if the image is very popular and many people unwittingly infringe on the copyright every day.

TW's claim was invalid here because they did not own the full rights to "Happy Birthday to You", not because of the popularity of the song.

Not if you wanted to use it in a film or TV show - failure to license it correctly would make it impossible to sell, and expose one to triple damages claims in theory, though they never brought any action - but 99.9% of producers would rather just pay the licensing fees.

From the article:

> Royalties on the song bring in about $2 million a year for Warner, according to some estimates.

If they're getting $2 million a year for it, I wouldn't call it de facto invalid.

that is a good point. i was thinking more that very many people learn and hear the song without ever learning that it is copyrighted... i'd expect big legal teams for big companies to at least do their job well some of the time... despite my experiences with this. this is where i'd expect the money comes from... people proactively being very careful to not get into trouble.

i think the vast majority of hypothetical cases claiming copyright infringement would struggle though. many small time birthday party entertainers certainly make money from the song, but it would be utterly unreasonable to pursue that money given the cultural phenomenon that it has become... i'd expect any decent judge to throw such a case out rather than mindlessly doing his job to the letter of the law.

This is exactly what gives IP law its power. The judge has no choice, and as the defendant you need to make the choice of paying for the lawsuit or paying for the license. The license is always cheaper.

I agree with judge

"...as part of a profit-making enterprise." Um ... welcome to capitalism? Seriously, Warner is a for-profit corporation. That makes them a profit-making enterprise. This kind of writing is rather disingenuous.

However, one could indeed argue that collecting license fees on this song was a racket.

"profit-making enterprise" refers to the person or people singing the song, because if they are not making a profit, they can claim fair use.

The point of the statement is that you don't have to pay royalties for singing "Happy Birthday" to your mother.

I can see how I've misapplied the clause in the sentence. Thanks. Not sure if I should delete the comment ...

Making a profit doesn't mean you can't claim fair-use:

https://www.techdirt.com/articles/20140909/15564328465/big-w...

Also: https://en.wikipedia.org/wiki/Leibovitz_v._Paramount_Picture...

not making a profit is certainly not either a necessary or a sufficient condition to claim fair use. Fair use can be affected by whether use is 'commercial', which is not the same as 'profit-making'. But you can make a profit from a work of parody and claim fair use (think about for example use of parody in advertising) and you can also copy something in a no commercial setting, and have no claim to fair use.

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