forget mickey: guess what’s free if the supreme court enforces “limited times”?

11 Responses to forget mickey: guess what’s free if the supreme court enforces “limited times”?

1. Dave Luebbert says:

   January 4, 2003 at 3:11 pm

   The continued term of the “Happy Birthday” copyright has strange consequences for the public. ASCAP, the organization which enforces the performance rights for “Happy Birthday To You”, uses it as a lever to force the purchase of performance licenses by venues which would otherwise have no need to purchase one. The legal theory is that singing the song in a public place for a birthday celebration constitutes performance. Because of this ASCAP is able to extract license fees from restaurants that otherwise don’t have a live music policy and from children’s summer camps where the song is sung for the camper who celebrates their birthday in camp.

   You will also find restaurants and summer camps that avoid performance of “Happy Birthday” by concocting alternative, generic, non-copyrighted birthday tunes that are sung to patrons at their birthday celebrations. I would guess that “Happy Birthday” would be the preferred tune for public birthdays in almost all cases, but these businesses won’t dare act on that desire until your Eldred appeal succeeds or until 2030 if the current law is upheld.

   This enforcement activity contributes a sizeable portion of the $2,000,000 the copyright holders collect per year. AOL Time Warner apparently bought out the previous owner for $25,000,000 with the expectation that they will be able expand the application of performance rights fees for “Happy Birthday” to an ever expanding circle of businesses and activities.

   At current rates, the copyright holders will be able to collect $56,000,000 from the public before the copyright expires. I would expect they actually may clear a great deal more than this considering that they have 28 years to cultivate new enforcement activities. This seems especially egregious since the composer died 18 years before copyright was granted and the lyricist passed on 12 years after copyright was granted. 83 years of copyright fees will have been collected on behalf of entities that had no stake in the creation of the tune.
2. Dave Luebbert says:

   January 4, 2003 at 5:21 pm

   It’s also interesting to note that a non-trivial portion of each copyrighted song remains in the public domain. The chord progression which specifies the root and type of the chords used in accompaniment and their duration cannot be copyrighted. This progression gives a tune its emotional complexion. Almost any particular arrangement of the progression can bring the original tune to mind when it is played. Listen to a random arrangement of the chords for “Happy Birthday To You” for example.

   Copyright cannot be obtained for chord progressions because a near infinitude of different melodies can be composed upon nearly identical harmonic structures. The unique jazz tunes “Anthropology” and “Dexterity” by Charlie Parker, “Cottontail” by Duke Ellington , “Oleo” by Sonny Rollins and the musical theme for the Flintstones cartoon show (all with unique copyrights) are all played over chord progressions derived from Gershwin’s “I Got Rhythm”. If you know any of these melodies, you can sing them while this chord progression plays. Once you’ve found the correct key, your sung melody plus this accompaniment will sound like they fit together.

   Jazz and rock improvisors depend on the possibility of creating alternate harmonizing melodies for a given chord tune’s chord sequence when they create their solos.

   It would be disasterous for musical development to allow plagiarism claims for chord progressions, since so many tunes share harmonic sequences with other tunes. See Ralph Patt’s Tonal Center’s page which catalogs many of these shared sequences.

   The vertical arrangement of pitches in any particular chord can be arranged in hundreds and sometimes thousands of different combinations. These alterations can subtly alter the emotional connotations of a performance but still somehow retain the identity of the base chord sequence.

   The fact that the chord sequence does not specify the exact expression of the constituent chords gives employment to arrangers who create a unique texture of accompaniment for different musical situations. These folks, who decide upon the exact stacks of notes in chordal accompaniment, decide how they are distributed to the instruments of an orchestra and who design countermelodies that fit with a tune’s original melody and harmonic sequence, do get to copyright their particular inventions. This does not, however, prevent someone else from creating an alternate arrangement that expresses the essence of the chord progression in a different way.
3. Tim Phillips says:

   January 5, 2003 at 1:39 am

   Not so fast. As I understand the situation, the copyright clock for the words to HBTY starts in 1924 only if (1) the 1924 publication was authorized by the Hill sisters, or (2) a condition known as “estoppel by acquiescence” applies.

   This loophole is why the copyright act needs to be amended to create an absolute public domain firewall. Presently we have something very like this at July 1st, 1909, but we could do better. For example:

   Proposed absolute public domain firewall: Copyright shall not subsist in any work of authorship that was distributed in copies to the public prior to January 1st, 1923, regardless of whether such distribution was with or without the consent of the author, with or without the consent of the proprietor of copyright in the work or any part thereof, or with or without the consent of any lawful claimant to any rights under the common law to the work, or any part thereof.

   (Please critique my legislative drafting with the hermaneutics of good will. This is still a theoretical proposal, not yet a practical one.)

   This might be narrrowed to apply only to “contagious” works, such as songs, poems, and melodies; or it might be written instead as a limitation on actions: a statutory presumption of estoppel by acquiescence for works that were printed in books long ago.
4. J. Patterson says:

   April 5, 2003 at 6:37 am

   HAPPY BIRTHDAY!

   1) Good Morning to All was written first, by the women you refer to. (My copy was published circa 1909.)

   2) Someone took their melody and put the birthday lyrics to it. (the women did not write the birthday lyrics.)

   3) As I understand it, in a strange action, the court awarded the ownership of the new “song” to the original owners.

   4) As I read it, the 1935 copyright has not been invalidated. BUT…

   That copyright DOES NOT apply to the original work “Good morning to all” – You CAN use that version FREELY. Here is a link where you can buy an original facsimile for 5 US dollars.
   http://www.pdinfo.com/rp/R002152.htm

   So, recording just the *melody* or making a midi IS SAFE and LEGAL. Where you *might* be walking a dangerous line is if you were performing the melody LIVE and *others* began singing the “birthday” lyrics publicly to accompany your performance.

   The 1935 copyright DOES NOT and CANNOT apply to the circa 1909 publication of “Good morning to all” – U.S. copyright doesn’t work that way. (A newly copyrighted derivative work does not extend protection of the original work.)

   Here is some additional reasearch on it:
   members.aol.com/katzmarek/pdmusic.htm

   And here is a recording of “Good Morning….” that I found online:
   mac3.a-cappella.com

   THIS IS NOT LEGAL ADVICE
5. J. Patterson says:

   April 11, 2003 at 9:33 am

   The information I have been able to find on the Web indicates that many people are unaware that the earlier song “Good Morning to All” even exists. Furthermore, those who are aware of it (including at least one practicing lawyer) seem to be under the false impression that it was not published formally, or not even published at all. That is clearly wrong. This may be propaganda released by the owners of “Happy Birthday” and picked up by others and spread on the Web without verifying the claims. Although the record of “Good Morning to All” would not be online, the Copyright Office should have a physical record of it for you to verify.

   Note that the word “happy” has two syllables, but “good” has only one. Thus, in the song “Happy Birthday” that note was split in two. I once read somewhere that the owners of “Happy Birthday” claim that this one-note difference creates a derivative work subject to protection. I am not familiar with any case law on it, but that claim seems bogus.

   “How much do I have to change in my own work to make a new claim of copyright? You may make a new claim in your work if the changes are substantial and creative — something more than just editorial changes or minor changes. This would qualify as a new derivative work. For instance, simply making spelling corrections throughout a work does not warrant a new registration — adding an additional chapter would. See Circular 14 for further information.” – http://www.copyright.gov/faq.html

   In this case, the new lyrics, or the combination of them (by Robert Coleman) with the Hill sister’s pre-existing melody, are the creative changes mentioned above.

   Even so, “Good Morning to All” CANNOT be a derivative work of “Happy Birthday to You” – “Happy Birthday” IS a derivative of “Good Morning” however.

   The commercial value of this song to many people would include the lyrics, so this doesn’t help everybody.
6. Anonymous says:

   April 13, 2003 at 9:02 am

   “The Hills’ catchy little tune was unleashed upon the world in 1893, when it was published in the songbook Song Stories for the Kindergarten. (The composition of “Good Morning to All” is often erroneously reported as having occurred in 1859 by sources that confuse Mildred Hill’s birth date with the year she created the melody.) After the song proved more popular as a serenade for students to sing to their teachers (rather than vice-versa), it evolved into a version with the word “teacher” replacing “children” and a final line matching the first two, and “Good Morning to All” became more popularly known as “Good Morning to You.”” – http://www.snopes.com/music/songs/birthday.htm
7. Anonymous says:

   April 13, 2003 at 9:13 am

   THIS ARTICLE may be where snopes got some of their information. However, the author does not make clear that a 1935 copyright of a derivative work cannot extend the term of a 1983 copyright of the original work. Many people seem to be confused by this. Thus the melody we know as “Happy Birthday” is public domain. Please note that the original publication was apparently made with consent, in the U. S., and it even falls before the 1909 mark.
8. Anonymous says:

   April 13, 2003 at 9:17 am

   Correction:
   …term of an 1893 copyright of the original work.
9. J. Byron says:

   December 2, 2003 at 2:24 pm

   Postscript for “Exposing Happy Birthday”

   Whether or not Happy Birthday to You is public domain, the original song Good Morning to All is without question public domain. (It even was when Stravinsky wrote his version.) Even if the Hill’s themselves had written, published, and registered the happy birthday version in 1935, that does not affect the public domain status of the earlier authorized version of Good Morning to All. Anyone else can write their own version based upon Good Morning to All. Good Morning to All is public domain no matter what setting you play it in, and just that fact is news to many people.

   Common Law copyright: Good Morning to All (which comprises the majority of the song Happy Birthday to You) was published with consent of the author, and since the Hill’s or Mr. Summy DID NOT pen the words “Happy Birthday to You” there is nothing for common law to protect regarding them.

   If the added authorship by the anonymous person who wrote the Happy Birthday version is not considered to have been published in 1915 or in the ’20’s, and Mr. Summy published his version based upon knowing that version, then he has infringed upon the anonymous person’s common law copyright also.

   The lyrics “Happy Birthday to You” were published prior to use of them on stage and in telegrams. (Which would not have been publication.) Mr. Summy would have a valid copyright if he had taken the anonymous lyrics and put them to the tune himself. He did not; he took previously published material (albeit from an infringing combination of material) and registered it.

   Scenario: If there had been anonymous lyrics published in a 1915 book that were completely different from Good Morning to All’s lyric’s in all respects except the meter, and at the top of the page, is printed “sing to the music of Good Morning to All” that would not be an infringement as none of Good Morning to All was republished. Mr. Summy could not take that as his own, even if judged to be public domain. The only difference in that scenario and this situation is that the Hill’s original song was republished as a result of the combination. The Hill’s had the right to determine first publication of THEIR material – what someone else authored, whether it infringed on the original or not, does not become the property of the Hill’s. The 1909 law or current law doesn’t say that.

   That would mean if someone created a parody of a song, like “Wierd Al” does, and did it without permission, that the original song owner would by default own the parody too, even where such added material is substantially greater than the original song. Of course, if published, the original owner could stop further publication, have Al’s CD’s impounded, and collect damages. As far as I know, acquisition of rights to any new material in the infringing published variation is not a remedy.

   The Hill’s or Mr. Summy could have taken public domain or anonymous lyrics and added them themselves, but they did not. The changed words NOR the idea to combine them with the original melody were authorship by the Hill’s, thus able to be registered. Whether the new material was two words as it was, or an entire public domain encyclopedia, the Hill’s cannot claim ownership of what they did not author: the two words, or the idea to combine them. (You cannot copyright public domain material whether two words or an encyclopedia.) The Hill’s could not copyright the combination (whether infringing or not) as they did not first combine the words and publish it.

   The main point is that Happy Birthday to You was not *original* to the Hill’s or Mr. Summy in 1935. That is an important principle of any copyright law. And even if the court had the authority to grants the [EXCLUSIVE] rights to an unoriginal bit of authorship to Mr. Summy, the earliest publication I know of was 1915. Current statutes imply that both Good Morning to All and the added material published in 1915, would now be public domain.

   I’m not even sure that the court even knew of earlier publications that were similar to Good Morning to All: Happy Greetings to All, 1858, Good Night to You All, 1858, A Happy New Year to All, 1875, Happy Greeting to All, 1885. Notice a pattern here? i.e. folk song. There may be even more previous versions that could be located, I don’t know.

   According to an article reprinted by Katzmarek, Ronald H. Gertz, Esq., apparently President and Founder of Music Reports, questioned the validity of the copyright as cited in that article. Anyway, it is not my job to argue this case. IANAL. I’m only reporting my understanding of the situation. It would be up to an interested lawyer to develop an argument supported by any case law that would bear upon the 1909 Copyright Act, the 1934 case, and any recent law or uncovered facts that would affect it.
10. Becky says:

    June 11, 2004 at 10:18 pm

    Hello,
    I am thumbing ( or fumbling) through “Happy Birthday” and copyright and I can across your e-mail message. I work for Chata Addy, a Ghanaian musician (www.chataaddy.com)
    Chata is performing at a lot of birthdays parties and often in bars people always want “Happy Birthdays”. I understand it is all right to sing the song but my question is about production.
    Chata and I were thinking it would be nice to give a free CD of him singing Happy Birthday with his own musical track, a salsa Happy Birthday.
    Do you know if he can sing the song on a single CD and give it to people? If not, do you where I might look for the copyright info.?

    Thank you,
    Becky Harrison
11. J. Byron says:

    June 17, 2004 at 3:11 pm

    Hmm. If I posted my full article, somebody must have not liked it. Here is a link:

    http://www.kuro5hin.org/story/2003/7/5/112441/6280

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