Comment by jayess | Hacker News Reader

Comment by jayess | Hacker News Reader

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.

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