Does the infamous "Happy Birthday to You" copyright hold up to scrutiny? | Hacker News Reader

Does the infamous "Happy Birthday to You" copyright hold up to scrutiny?

slate.com

75 pointsJacobAldridge22 comments

It's kind of cringe-worthy that a copyright from 1935 isn't public domain, regardless of the circumstances of its issue.

US lawmakers have signaled that nothing created after 1928 will ever become public domain. Why 1928? That is the copyright date for Mickey Mouse and he is worth too much money to let become public domain.

If you doubt that congress has messed with copyright over the years here a is (7 page!)"cheat sheet" for when something will become public domain. http://copyright.cornell.edu/resources/docs/copyrightterm.pd...

Pedantic here - while Mickey Mouse was created in 1928, the cut-off for public domain works is 1923. Also there was a long period of time where works needed to be registered (and re-registered) so there are plenty of works that have fallen into the public domain since 1923 (Night of the Living Dead being a prominent example).

You are exactly right and Congress "fixed" that. Currently no copyrights will expire until at least 2019. Anyone want to bet Congress passes another copyright law before then that extends copyright terms?

As a former copyright activist, we used to hold up "Happy Birthday To You" as the quintessential example of everyday activities that were copyright infringements, like when Lawrence Lessig went through the formalities to perform the song at the anniversary of Free Culture [1].

Yet the questionable legitimacy of the "Happy Birthday To You" copyright claim is something I only recently started to hear about, first from Ben Sisto's Ignite NYC talk [2] and then again from several other copyright activist friends.

While even litigating the validity of Warner's copyright over "Happy Birthday" would be a symbolic victory for copyright activists, it likely wouldn't get very far. And let's not forget that Congress could be moved to pass a law granting "Happy Birthday" its own copyright exemption in response to the actions of a court.

[1]: http://www.wired.com/wired/archive/13.07/posts.html?pg=7 [2]: http://www.youtube.com/watch?v=mkUFlZ05EiI

For critics of copyright law, it really doesn't matter whether WMG has a great case or not. At the end of the day, they extract $2 million per year, and many businesses (such as restaurants) must expend resources to avoid or defend themselves from lawsuits. So there's a serious problem.

Even worse in my mind is that this supposed incentive to creativity is destroying our culture. A parent at my daughter's school wanted to video a school performance and then distribute copies for the cost of duplicating them. He is a lawyer so he looked into what he would need to do to be above board with regard to copyrights of the songs. To make a long story short - it is not possible - he would need to negotiate a deal with each copyright holder. This problem is blocking other people also: http://www.outsidethebeltway.com/wkrp-and-stupid-copyright-l...

I remember learning about this in a college IP law class. After that, I started to notice how every restaurant sang their own unique version of this song.

It made me notice that when McDonalds started playing music, they played exclusively classical music, which I thought to be out of place. Now I wonder if they're using public domain works, or perhaps arrangements thereof which they have copyrights on.

I'm starting to think that we need a free music movement, where people start creating music that can be used freely in personal videos, school plays and whatnot without all these copyright shenanigans. A good place to start would be the public domain classical music. There's a lot of good stuff there.

It's certainly possible. I'd note there are a variety of services who exist solely to provide "in store music" to stores, which handle all the copyright/broadcast rights etc....and they are generally pretty affordable.

Still I wouldn't be surprised if there was a discount for stations that are pure public-domain or if small franchises were just playing it themselves (though presumably the recording/performance itself is still protected and they might not be in the clear legally if they were say, just playing a CD)

>I'm starting to think that we need a free music movement,

It already exists, it's called the Open Source Movement (well, amongst others). There is a variety of music available under say, a Creative Commons license...and many websites devoted purely to free-music.

Not all CC licenses are free for commercial use, though. In fact, most of them aren't. And you're right that one has to have all the relevant copyrights to avoid legal hot water. I think that there's a different right for just about every little piece, from the arrangement of the music to the lyrics to the recording and performance rights.

Combine those two points and you see that getting strings-free music is a little harder than usual. And precedents like that nonsense about a 5-note hook from a long time ago don't help when it comes to issues of derivative works.

>Not all CC licenses are free for commercial use, though. In fact, most of them aren't.

Sure, it wasn't my intention to imply that. I'm talking explicitly about music that is completely free to use, and music licensed under certain CC licenses is just an example to illustrate the point.

Thank's for clarifying for other readers though.

It was also not my intention to imply that getting free music is easy. Of course much music is commercial, many people are reluctant or unable to give away products of any type.

My point was only that there are in fact a lot of people creating music and releasing it explicitly to provide music which can be used for any purpose commercial or not, and a variety of websites which catalog this music.

These people/websites are a boon to many, like podcasters who require into/outro/background music.

I'm not saying this movement could not use more momentum, support, etc....the contrary in fact. I'm saying only that it already exists.

Fair enough. I'm just trying to advocate for more music and fewer strings attached. I know that some exists, but, as you point out, things are still far from simple.

Causation or correlation, hmm. I never thought of it like that, but the idea has merit

Everytime I read about Warner Brothers (or any of the big 4), it seems like it is only a matter of time until their house-of-cards business model is dismantled. However, like this article say, it seems like even when they don't have outdated IP laws protecting their dubious claims to works, they still wield the threat of expensive litigation.

Someday, IP laws will be forced to change. But currently the biggest impediment is large corporations like WB gumming up the legal system to prevent any minority opinions.

You make it sound like these absurdly long copyright terms are some relic of the past and it's only a matter of time before they're shortened. In reality they have been repeatedly extended over the last century (as recently as 1998) and there's no indication that this trend has turned.

Err... maybe I just didn't read the article closely enough, but if both the music and the words predate 1900, how can there possibly be a valid copyright on it today? I mean, I'm sure it would cost big bucks to prove in court that it should be public domain, but WB wouldn't actually have a leg to stand on, would they?

Because there is nothing showing the tune and the words together (i.e. sheet music) with some kind of statement that involves copyright. It's a shaky leg, but a leg nonetheless.

But even if they were combined without permission, wouldn't that invalidate the later copyright? I know copyrights aren't exactly like patents, but was it really possible to take something someone else had written (decades earlier!), and copyright it yourself?

Hmmm, I also came away from the article with more questions than answers.

Would this mean that the lyrics are not under copyright, but just the performance combined with the music? And that the music is not under copyright unless combined with those lyrics?

Assuming that the copyright to the combined is valid, is there any other way I could recombine them that would constitute a copyrightable derived work -- simply shifting the key the music is performed in perhaps?

My conclusion; copyright laws suck.

1978? Really? So Marylin Monroe was a time traveller? http://www.youtube.com/watch?v=k4SLSlSmW74

(Also, if she was a time traveller, I wonder whether copyright laws are prepared for cases where time travellers are infringing copyright before the work was created)

However, someone with foresight would instead US copyright Spanish language birthday songs and repeat the same business model based on an expanding demographic. </irony>

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