Filmmakers fighting “Happy Birthday” copyright find their “smoking gun” | Hacker News Reader

Filmmakers fighting “Happy Birthday” copyright find their “smoking gun”

arstechnica.com

234 pointsMBCook88 comments

One cannot discuss long-term copyright without mentioning the mickey mouse graph.

https://www.techdirt.com/articles/20090811/0123105835.shtml

Copyrights have been extended so many time that the legal system has forgotten how to deal with expiration. The concept of profitable works "falling" into public domain is strangely foreign to most IP lawyers.

It's not exactly "forgetting":

"Actually, Sonny [Bono, Congressman who pushed the Copyright Extension Act] wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. ... As you know, there is also [then-MPAA president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress."

-- Mary Bono, speaking on the floor of the United States House of Representatives

> It's not exactly "forgetting"

Unless you count forgetting high school math :-)

> "Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. ... As you know, there is also [then-MPAA president] Jack Valenti's proposal for term to last forever less one day."

http://www.wolframalpha.com/input/?i=infinity+-+1

> It's not exactly "forgetting"

Unless you count forgetting high school math.

http://www.wolframalpha.com/input/?i=infinity+-+1

Strange that a recording artist would do this. :-) Makes one very cynical about his reasons for running for congress. And also very cynical about Mary following her father's footsteps.

I like especially this part:

> But, really, the bigger point was made by Boyle where he noted that we are "the first generation to deny our own culture to ourselves and to drive the point home, he notes that no work created during your lifetime will, without conscious action by its creator, become available for you to build upon. For people who don't recognize the importance of the public domain and the nature of creativity, perhaps this seems like no big deal. But if you look back through history, you realize what an incredibly big deal it is -- and how immensely stifling this is on our culture. And then you realize this is all done under a law whose sole purpose is to "promote the progress" and you begin to wonder how this happened.

I'm surprised we aren't all reading this on shitty xerox workstations with black and white graphics...

Luckily, patents don't last nearly as long as copyright.

Yet.

This is especially interesting considering that the birthday song is essentially new lyrics for an older melody.

>The 1927 songbook referenced above was found in a batch of 500 documents provided by Warner/Chappell earlier this month. That cache included "approximately 200 pages of documents [Warner/Chappell] claim were 'mistakenly' not produced during discovery, which ended on July 11, 2014, more than one year earlier," Nelson's lawyers write.

>The new filing comes as US District Judge George King was just two days away from holding a hearing

>That important line of text published underneath the song's lyrics was "blurred almost beyond legibility" in the copy that Warner/Chappell handed over in discovery. Plaintiffs' lawyers note that it's "the only line of the entire PDF that is blurred in that manner."

Hide the needle (and then obscure it too) in a big stack and dump it at the last possible moment. Can the judge hold them in contempt for this sort of thing? OTOH, I'm amazed they handed it over at all.

"Hide the needle (and then obscure it too) in a big stack and dump it at the last possible moment. Can the judge hold them in contempt for this sort of thing? OTOH, I'm amazed they handed it over at all."

Sounds like business as usual to me.

Considering it was the only blurred page, I wonder if that made it stand out more...

I would say it could be a potential disbarment of their attorneys.

> even if the work had been published in 1922 with proper notice, and even if that copyright had been renewed in 1949 (which the plaintiffs say it wasn't), the song still would have become public domain at midnight on December 31, 1997.

75 years of copyright protection is ridiculous; imho, this should have been 10 or maybe 15 years.

Today copyright protection is in fact much longer than 75 years in the US.

For personal works, it's life of author + 70 years. So if you write a poem today and live another 60 years, your poem will enter public domain in the year 2145.

For "works made for hire" (which includes most commercial works), the term of copyright is either 95 years from publication or 120 years from creation, whichever is shorter.

So the movie "Ant Man" will enter public domain in 2110... Assuming that the US Congress doesn't extend the deadline indefinitely (which the Supreme Court has permitted).

Law text: https://www.law.cornell.edu/uscode/text/17/302

Nothing will ever enter the public domain while Winnie the poo is bringing in the billions.

Since long copyright term exists solely to protect media companies' IP brand families, there could be an exponential tax on copyright extension.

The first nine years of copyright are free. After that, you pay $100 to renew for the tenth year. At year 20, the price is $1000 / year. At year 30, the price is $10,000 / year, which is still perfectly reasonable for profit-generating IP.

The 70th year of copyright will cost a billion each year. At that price, it becomes a major board room decision whether to keep milking the same IP or rather come up with something new.

The profits from this tax could go to culture and education, similar to what is done with gambling profits in many European countries that have a state-owned gambling monopoly.

Ideas like this is what we need.

I'd like to upvote this twice.

I am generally very anti-copyright ( I hold that ten- to twenty years should be enough for the creator/their family) but I really like this exponential tax proposal.

That's an odd shifting of the Overton Window. I would generally think that someone who was anti-copyright would start from the position that copyright shouldn't exist at all. And that someone who was very anti-copyright would be actively protesting against the law.

It's a compromise. If copyright really is so important to your business model, then you can afford to pay for the extension. Once it stops bringing in money, it becomes public domain within a decade.

As it is now, all art that does not generate money is forgotten and remains inaccessible forever.

In particular, there's a ton of interesting non-fiction (eg, niche history books containing original research) that's out of print but not out of copyright.

Nobody benefits from this. If we had a reasonable "orphaned works" law, the internet could contain much much more useful information.

Or, more likely, publishers would allow print-on-demand ordering of any book in their collection.

Either way, it's win-win.

Life of the author unless the author dies within 20 years of start of initial copyright in which case immediate family can extend by 20 more years, giving offspring, spouse etc, a chance to gain income from a deceased's work. (i chose 20 years because that would be baby to adult in the case of offspring).

Companies: 20 years then stfu. Remember, they can still sell their product, and they could come up with a scheme to mark it original or authentic, like wines and foods now do.

About companies this is what I think: If Mickey Mouse goes off copyright, sure there would be copycats making Mickey toys and not paying royalties/fees.

Possibly somebody non-Disney approved would be making a Mickey Mouse movie.

However, Disney could still be certifying approved toys(Nintendo seal worked quite well, there were non Nintendo cartridges but they were hard to find and generally horrible , I was tinking Custer's Revenge - https://en.wikipedia.org/wiki/Custer%27s_Revenge but that was a non Atari approved cartridge).

And if someone can make a new Mickey movie that stands along Fantasia then more power to them is what I say. Disney has been sitting on Mickey laurels for too long.

Atari didn't approve cartridges. That's exactly how something like Custer's Revenge got made.

Nintendo didn't just approve cartridges by attaching a sticker to them, there was a protection chip inside (sold to the manufacturer by Nintendo) that allowed access to the NES. The reverse-engineering of this chip led to lawsuits:

https://goo.gl/Cy736g

You're conflating trademark and copyright. They're two different things.

The copyright on Steamboat Willie expiring means that the cartoon, Steamboat Willie, falls into the public domain. That doesn't mean that anyone can make "copycat" Mickey Mouse toys, infringing on Disney's trademark.

You are correct, but then there is even less sense for Steamboat Willie to be still copyrighted (besides the obvious use in opening credits of recent Disney features, which the cynical me thinks is some attempt to extend the copyright protection not just a homage to the humble beginnings).

If the MM toys still have trademark protection why shouldn't Steamboat Willie go to public domain?

I would assume it's Disney's position that copyright terms should be indefinite. Such a policy allows them to indefinitely extract rents from the "assets" of "intellectual property" that their earlier works represent.

I don't agree with the position, morally, but from a purely practical perspective it makes sense that they'd want to maintain the value of these assets ad infinitum.

The flip side of this is that the boardroom decision will come down to can the billion dollar tax be passed onto the consumer or competitors? If you apply that to some other forms of IP like patents, the answer is "quite possibly yes"

The individual creative will relinquish copyright after 20 years, even if they're still hoping somebody might one day make a film out of their work and are kinda keen on having some sort of creative control. On the other hand, Disney will potentially still be shifting enough videos and merchandise to be renewing copyrights up to year 49. It's not exactly unprecedented for major studios to create high value brand families out of 20 year old books either, but in this case they'd rarely need to cut the author in on the profits.

Other than the revenue raising potential, that actually seems worse than the current situation for skewing copyright in favour of the brand families.

I like our german version "Urheberrecht". It is different from copyright because it cannot be transfered. Some comic character cannot be owned by a corporation which milks it for decades and centennials. An author can only give a licence to a company.

I always wonder what really happens whenever I transfer copyright for my papers to some publisher. It probably has no effect here in Germany, but is it valid in the US? Then I also wonder if TTIP might change anything about this?

Oh, please. That's a distinction without a difference unless you're saying that German authors can't hire legal representation or assistants and must actively negotiate and manage each license solo.

The distinction is that once the author dies the work falls into the public domain. For as long as they are alive they can license it to a company, and the company can defend it or do whatever, but when the owner dies the copyright dies with them.

I don't see how that can be possible. The Berne Convention established a minimum of 50 years after death and the EU harmonized to 70 years after death.

Some parts can not be transferred, but others can, particularly usage rights (publishing etc.) and licensing happens all the time.

It's a great idea - if IP is property, it should be taxed like property - but then you realise how few places have a property tax because property-owning money dominates the political process.

Are those fees 'per work'? Is it one fee per episode of a TV show? One fee for every issue of the New York Times? You'd be incentivizing IP creators to combine as much content into one conceptual 'work' as possible.

Bring it closer to home. Would it be one fee per source-file in, say, the Linux codebase? Much of that code is over 20 years old. When you modify one of those sourcefiles, you're creating a new derivative work which has its own copyright date and author, so do you need to pay to extend copyright on every version of every file, lest they fall into the public domain and then lose the protection of the GPL?

Every new update under GPL get's it's own copywrite date. So, having a 20 year old Linux codebase enter the public domain would do little.

I like this thinking.

I think this was Larry Lessig's position at one point. I think it's a a nice, practical solution that acknowledges that copyright is a political animal - let Disney keep Mickey forever, but the public gets everything of a lesser order of magnitude in value faster.

The problem with copyright is one of corruption, which a copyright tax does not solve. At the point of billion dollar renewals the board decision becomes, "How can we best spend our marketing and lobbying dollars to gain an exemption to or remove this tax?"

It also is very imbalanced. The average IP holding corporation will be much more able to pay $1000 or $10000 fee to hold onto a copyright, as well as able to determine which copyrights will be profitable in the future. They are also better able to leverage marketing power to make content profitable more quickly.

In contrast the average individual content creator is more emotionally attached to a work, less able to pay fees, and less able to market it effectively in order to make it profitable so he or she can afford the fees.

Patents I can understand needing often to be shorter than they end up being, but personal copyright I'm not so disturbed by. When should people be able to publish derivative copies of For Whom the Bell Tolls on self-published Amazon accounts without royalties going to Hemingway's estate?

Works made for hire, 100 years feels like a really long time.

Because the idea that one individual - who is now long dead - can create a work that then should be protected for several generations of descendants is a wealth stratifier.

What implicit societal value are it's modern beneficiaries creating that entitles them to that revenue?

It's social status and worth are that value. At creator's life + 75 years, the existing law is the lifetime, sort of, of the creator's offspring, not several generations.

Should I be able to take his bibliography, self-pub it on Amazon with flashy covers and take the profits from it? I'm not sure.

If you are able to figure out how to make a profit with a public domain text, you are very entitled to them.

If he wrote the books half a lifetime ago?

What's a reasonable time, then? 10 years? 20? From when it was published, or when it was written? It can take years for a manuscript to move through editing, and many of our beloved classics did terribly their first run or two.

Is it anymore fair should a publishing house go all 90's Star Wars on works their stable of authors wrote a few decades after first publication, with the authors not seeing a penny from them?

75 to, what, 150 years may indeed be too much, but the answer is not so clear as to what the alternative should be.

I don't know what time is reasonable, but I think there has to be a deadline at some point.

I'm trying to argue that if after a finite X amount of time the work falls into the public domain, then very likely nobody will make very much profit from that work in its unmodified original form at all, unless they provide some sort of service that is of value.

Also it opens new opportunities for _everybody_ to build upon the previous work with a unique and good fresh idea, which they can then try to market.

The original author had their fair chance to make money and monetise their idea to the best of their ability. Now let's find out what other people can create from it.

Copyright could be separated into multiple tiers that expire over time. First all rights reserved, then CC-BY-NC after 20, then CC-BY-SA with moral rights to protect living authors' reputations, then CC-BY, then CC-0.

At creator's life + 75 years, the existing law is the lifetime, sort of, of the creator's offspring, not several generations.

No, not at all. That would only be the case if authors generally died immediately after the birth of their children.

If you live to see your grandchildren, which isn't exactly uncommon, they'll still have your copyright inheritance long after their parents have died.

With the recent increase in lifetimes, it'll be common for great-grandchildren to have the inheritance of copyright over works for almost their whole lives.

It will still run out after 75 years... So, sure, the grandkids will manage the estate for a decade before it expires. It doesn't say "the lifetime of the copyright holder at expiration," unless I've missed something.

If we're going to get silly, recent increases in lifetimes are also being followed by lower birth rates and parents having children older, so no it doesn't follow that three full lifetimes will be covered by these copyrights. I know copyright isn't popular here so I'll leave this be, but let's not get hyperbolic, please.

Hmm, It's not uncommon today for grandchildren to be in there 30's when a grandparent dies. Thats around children having age also.

I could easily see it being common already for an author to die at age 90, leaving children (aged ~60), grand children (aged ~30) and great-grandchildren (aged ~1)

That gives all of those people 75 more years of income from the original authors work. Which leaves us with grandchildren (aged ~105), great grandchildren (aged ~75), great-great-grandchildren (aged ~45), great-great-great-grandchildren (aged ~15) once the copyright expires, if it is never extended.

I'm not sure i see why the great-great-great-grandchildren of an author deserve the income from that work into their mid to late teens.

Yes. If you can do that, so could anyone else. And Gutenberg would give it away for free, so if you can make a few cents, why not?

The only reasonable provision to make for the offspring of a creator is to extend the copyright term to a maximum of the creator's lifespan, plus the mean human gestation period, plus the age of legal majority. For the sake of simplicity, we'll just call it 20 years.

I'm willing to support a creator's minor children until they are old enough to support themselves. I am not willing to give them a free pass for their entire lives just because they were lucky enough to be born to a popular artist.

I wouldn't even let my own kids freeload off of me once they get old enough to leave home, and I actually like them.

Nor do I think that an artist should be able to make something while young, and rest on the same laurels until the day they die. Certainly, they should be able to retire at the same age as the rest of us, and expect their last work to remain protected until they die, so the regular term should probably be no more than the numbers conservative retirement planners use: the 95th percentile for life expectancy from age 65, or about 35 years.

So a maximum term of 35 years, and a minimum term of 20, with the term for works in between those ages ending upon the death of the creator. Works done for hire would simply have a term of 20 years.

That's very reasonable, in my opinion.

But at the same time, anyone could distribute the work for free. Self-publishing on Amazon would have to add value to the work in some way, for example in formatting it as an e-book.

I am an ardent supporter of copyright laws but there needs to be some kind of middleground. Copyright lasts way too long.

Even if the copyright expires wouldn't you be forbidden to use eg. the "Mickey Mouse" name for your own mouse-stories? Because of trademarks, which don't expire?

Yes. Copyright does not stop you from using the name "Mickey Mouse" for anything. Trademark does.

Well, kind of a gray area. If I wanted to write a story or song about Mickey Mouse and sell it, that would be okay. If I wanted to start a line of T-Shirts based on that story or song, that would be an issue.

If enough people got together and started making public domain art featuring Mickey Mouse - so much so that it became generic - that could potentially render the Trademark no longer valid, from what I've seen of the law/intent. Very large curve to overcome, but possible in theory.

I think you could only depict Mickey Mouse as drawn in 'Steamboat Willy' as later depictions would still be under copyright.

Trademark law would prevent you calling it Mickey Mouse and my guess is that if you ever tried to use the public domain Mikey Mouse, Disney's lawyers would bury you in so much legal paperwork that you'd give up before you got smothered.

Interesting perspective, I can follow the line of reasoning for sure.

Part of the reason I mentioned song or story (vs. visual format e.g. a comic) is because it allows the consumer to fill in the visualization themselves. Thus, while using the 'Steamboat Willy' version as a creator, the audience is free to substitute their conception as they please. No doubt I'm working a fine line here, but a catchy song about "Mikey Mouse on the River" could pretty much hit the factors to ground it in public domain...well, I'd like to think so at least haha.

I guess we'll have a whole new set of legal knots to work through. I mean as in Trademark vs. Public Domain Copyright. This does bring me to recall Southpark has frequently used Mickey Mouse in a parody fashion (as an evil, iron-fisted empire chief) and apparently did a good enough job of sticking to Fair Use that I can't find evidence Disney ever sued.

What I'm getting at is I do agree Disney is highly motivated to protect every bit of their IP to the fullest extent possible - no doubt their lawyers like this very much - but in a changing landscape, there may be certain workarounds that clever artists will use.

The art will also have to use the characterization of Mickey Mouse as he appeared in Steamboat Willie. More modern depictions would still be protected.

I have noticed that Disney has recently started using an actual clip of Steamboat Willie as a trademark for Walt Disney Animation Studios. This seems to be a hedge against expiration of the copyright.

It's a grey enough area that the better lawyers would win in any dispute. And Disney has the best.

It's much safer to simply shove Mickey down the memory hole, and create an original character that isn't going to draw so much high-caliber, high-explosive, armor-piercing fire.

As I mentioned in a related response, I do see the reasoning in the 'Steamboat Willie' distinction, but that's why I mentioned a story or a song. Those don't actually have visual depictions of Mickey Mouse...the character itself of Mickey Mouse as a concept would be invoked, and the audience's imagination would have to fill in the visualization. I'm not saying it's perfect, but it's a hypothetical avenue whereby having Mickey Mouse in the Public Domain actually has downstream artistic applications, and ones that Disney's own lawyers would hopefully look at and say, "Well, shucks, this totally skirts our protection avenue" because, well, if they're the best lawyers, then they'd be obligated to avoid frivolous lawsuits.

I think it's important for artists to continually needle and wrestle with commercial enterprises for the sake of art and entertainment. Mickey Mouse just so happens to be the most visible target, well, other than Happy Birthday. And, furthermore, I'd argue that RIAA (WB) lawyers are easily as skilled and talented as any that could be found at Disney, and if this case goes the way of the Plaintiffs, it'll show that yes, it is possible to challenge and win.

Giving up just doesn't sound like very much fun to me.

Have you ever seen Sergeant York? No? The film, which is based on historical accounts from World War I, describes Sgt. York's technique for taking down an entire flock of geese, as applied to German machine-gunners.

You never take out the leader first. If the leader goes down, the rest of the flock scatters. You shoot the one furthest back. Then second from the back. And so on, from back to front, until they are all down.

It isn't fun to undermine every last little support before attacking the central pillar, but if you want to accomplish your goal, that's the most certain way to do it. So when those first Disney Bros. 'toons go public domain, you don't go after Mickey right away. First, you take back Pete. Then, you take back Minnie. Take back Clarabelle and Horace. Then, just when it looks like you might take Mickey, too, you plop Oswald down in his place.

In fact, it might be funny to just edit Mickey out of Steamboat Willie entirely, and replace him with a digital Oswald. Every time another Mickey Mouse short goes public domain, stick Oswald in there. Erase Mickey from history, from back to front. If the trademark isn't there, there's no possible trademark claim.

Warner will win and keep the copyright. Evidence has little bearing on this sort of thing - all that matters is money. The lawyers will want to spin it out for more billable hours, the judge will too, as having that he found in favour of Warner on his cv will help him get more lucrative work from corporations.

By your logic there is no justice system, and I'm not sure that everyone agrees with that.

We have a justice system, it's just hopelessly corrupt and biased in favor of those in power.

So you could say that you have the best justice system money can buy?

Do you by any chance read the blog of the German blogger fefe? xD

He does make this joke "the best XYZ money can buy" about governments, judges and police in europe and the US quite often.

Sorry, but no.

The joke is old. I first heard in the early 90's, applied to government. It was old then.

I honestly would not be surprised if it could be traced to the early days of the Renaissance :)

I'd suspect Ancient Greece at least. I would not be surprised if a variation of it was sarcastically uttered within the first week of money encountering law.

We have a legal system that is largely PTW. We do not have a justice system. Many will disagree with it because they have never been on the wrong side of the system and accepting such a harsh reality in place of their ideal fantasy is very difficult. I'm almost jealous of such individuals for, as it is said in popular culture, ignorance is bliss (when the ignorance is of a danger you can neither prepare for nor flee from).

Meh... they can afford to let this one slip. It's one copyright, it's an embarrassment, it makes them $2m a year which is chicken feed for these sorts of companies. No expensive precedents will be set. Take it on the chin and move on.

The business with (possibly) mangling the PDF, however - I don't know whether that's perjury or perverting the course of justice or neither, but somebody ought to do hard time for that.

Which, of course, they won't.

No, Warner will not win and the copyright will be dismissed. For far too long there have been vagaries and nuances to copyright and its extensions that utterly and completely violate the letter and spirit of the law. Copyright is a synthetic monopoly, so to speak, and this case has been high on the radar for a long time - moreso even than the Flo & Eddie issue regarding pre-1972 recordings.

The book was published in 1922. The law changed in 1923. This is as clear as possible, and Warner will lose.

My birthday is coming up, and if the decision comes out as I expect it to in time, then I'll record it myself, release it for free, and return it to the Public Domain so it can be used by whichever artist, filmmaker, business, or entity without the need to pay mechanical rights.

The Hollywood Reporter had the scoop apparently and has a few more details.

http://www.hollywoodreporter.com/thr-esq/happy-birthday-laws...

Copyrights are so stupid sometimes. In France there was this class (children) that sing a song to their teacher retiring. Guess what? There fuckers came and ask for money, what a world we live in.

Source (in french of course, sorry): http://www.maitre-eolas.fr/post/2006/07/21/403-adieu-monsieu...

An interesting insight into (I assume) US culture in the comments that I've certainly never come across before. Do restaurants really have their own proprietary versions of the "happy birthday" song over there? I've only ever heard the "proper" version in restaurants and other social gatherings here in the UK.

Yes, generally along the theme of the restaurant. I've actually never heard the traditional song in a restaurant.

Wow, you learn something new every day. I didn't come across it the couple of times I've been over there. I suppose in TV and the movies we always hear the "correct" version (even in a public setting) because they've paid the money to Warner to be able to use it.

Generally true, but I've actually been hearing more and more of the actual song lately.

Chains seem to never do the original, but small, locally owned restaurants often do, at least in my experience.

I've heard the Happy Birthday song in a Hard Rock Cafe. I suppose they paid for the right to do so.

Frankie & Benny's do this too, in the UK.

> Warner/Chappell has built a licensing empire based on "Happy Birthday," which in 1996 was pulling in more than $2 million per year.

Leeches on society. Good riddance.

Warner/Chappell has submitted a response arguing that it's not quite a smoking gun.

Copyright divestment by failing to put a proper copyright notice must happen with the "consent of the copyright owner". The song in the 1922 songbook said, "Special permission through courtesy of The Clayton F. Summy Co." without the appropriate copyright notice. The lack of proper copyright notice would have released it to the public domain (proper notice was included on other songs in the songbook). However, Warner/Chappell claims that Summy didn't own the copyright in 1922: the songbook asked the wrong people for permission.

"There is no evidence that the Hill Sisters (Jessica or Patty) granted anyone the right to publish the Happy Birthday to You! lyrics until 1935. The evidence instead shows that Summy sought and obtained a license to publish the Happy Birthday to You! lyrics from Jessica Hill in 1935."

As circumstantial evidence, Warner/Chappell also points out that in earlier court battles in the 30s and 40s the copyright holders never indicated that there was any authorized publication before 1935.

Warner/Chappell doesn't address the filmmaker's claim that a 1922 publication would put the song into the public domain in 1997. I'm confused here: Would the publication have to be authorized for the 1997 date to hold?

Filmmaker's request for summary judgement: http://www.scribd.com/doc/272751583/Birthday-Evidence

Warner/Chappell's response: http://www.scribd.com/doc/272870978/Warner-Chappell

Why is this in the Apple News section of Ars?

CEO of Disney sits on Apple's board (probably related to the infamous Micky Mouse law)

Reply on news.ycombinator.com