Here Is A Law Suit To Root For

birthdaycake1The continuing charging of licensing fees for commercial use of that most public of songs, “Happy Birthday,” has been an annoying anomaly for as long as I can remember. Why did TV families always sing some lame approximation or substitute when a character had a birthday? Just last week, I expressed my chagrin when Tom Selleck’s extended family on “Blue Bloods” brought out  granddad  Len Cariou’s birthday cake, blazing with candles, as they sang, “For He’s A Jolly Good Fellow!” Who sings that at a birthday party today? People who don’t want to be held up for the licensing rights for a song over a century old, that’s who. I believe the first time this issue imposed itself on my consciousness was when they sang some lame birthday song stand-in on “The Flintstones.”

Jennifer Nelson, a film-maker, has had enough. She was producing a documentary movie about the song, and naturally wanted it to be performed at one point in her film. Like many before her, she was told she would have to pay $1,500  via a licensing agreement with Warner/Chappell, the publishing arm of the Warner Music Group, which acquired the rights to the song  in 1988.  Nelson’s company paid the fee and is now seeking certification for a class action law suit arguing that “Happy Birthday”  is in the public domain, and has been. Warner/Chappell collects about $2 million a year in licensing fees for it, and the suit seeks return of the  fees it collected over  the last four years. The lawsuit cites the research of Robert Brauneis, a professor at the George Washington University Law School and the author of a 68-page article titled “Copyright and the World’s Most Popular Song.” In the study, Professor Brauneis demonstrates, to his satisfaction at least, that the Hill sisters,  Mildred and Patty, wrote a song in the late 1800s with the same melody called “Good Morning to All.” Nobody is certain who wrote the lyrics referring to a birthday, but it was in popular use as early as 1911.

Professor Brauneis told the New York Times that “Happy Birthday to You” was “economically significant” in that it “still produces millions of dollars of income in a year,” and thus he is hopeful hat a successful legal challenge “might be a model for challenges to other songs.”

We should all be so hopeful. The intellectual property law intended to give the creators of original artwork, music and literature a fair opportunity to profit from their labors, and by so doing to encourage creativity and invention has been grotesquely distorted, in part by lobbying efforts of entertainment mega-conglomerates like Disney, to actually impeded creativity, as in the restrictions encountered by Nelson. While a creator should be able to also profit from selling licensing rights, it is absurd for the second or third party owner of them to be able to insist on payment for use so long after the origination of the material, and no situation that I am aware of illustrates this absurdity better than the “Happy Birthday” fiasco. It’s too late for Fred Flintstone and the Reagan clan on “Blue Bloods,” but it’s way past time to let “Happy Birthday” be free to all.

Next up: letting the characters sing the tune of “Who’s Afraid of the Big, Bad Wolf?” in productions of “Whose Afraid of Virginia Woolf?” Despite the obvious allusion, playwright Edward Albee was forced to use the public domain tune “Here We Go Round The Mulberry Bush” instead of that song, because Disney wouldn’t allow it’s 1933 cartoon ditty, sung by three little pigs, to be used in such an uncivil drama.

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Sources: ABA Journal, New York Times

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10 thoughts on “Here Is A Law Suit To Root For

  1. So interesting! Wow – I had no idea. But my teen daughter, did. Thanks for giving me something concrete to talk to her about – she is not always so keen on talking to mom these days. It seems I don’t know much of anything. Well at least on this subject, I actually did! So, thanks again!

  2. It seems to get crazy with copyright and it appears to me that the laws addressing it just overreach or just don’t apply (computer software). Look at Bridgeman Art Library v Corel Corp, where Bridgeman wanted to retain control of photographic reproductions of public domain paintings. It didn’t result in a win for them but I believe that they did have merit. They spent the time and money to create the reproductions. However I am happy with the result because current copyright law should not have been used to protect their investment. Otherwise when would a copyright truly expire?

  3. This is a trivial example of the harm perpetual copyright causes. A bigger problem is the knowledge that is lost because it doesn’t pass into the public domain. I have several books that I will not let anyone else touch because the authors are dead (so no new edition), they are out of print, and the information is not available anywhere else. Because these books will never pass into the public domain now (and it is very difficult to determine that even it has, now), they will slowly decay and that knowledge will have to be recreated.

    • For those of us interested in the artistic aspects of video games, current fashions in digital rights management (DRM) give similar concerns of artistic material being lost to history. Those of us who appreciate the history of the medium already must wrangle with rapidly changing technology, making new emulators and ports for each generation of OS. While companies have a right to make sure game licenses are legitimate, I wonder if online activation forces their products to be consigned to the dustbin when the servers are taken down or the company becomes defunct?

      • I tried to buy copies of Cricket Graph long ago, but long after Cricket had been acquired. After contacting the current owners, they told me that they get too many of these requests to bother with them and just to copy it. Our taxpayer-supported software disappears too. Web-Course-In-A-Box was funded by the federal government and was free for download. Then WebCT bought them, then Blackboard bought them. Try finding your software now. The open-source people had to start from scratch to make Moodle instead of being able to update the source code from Web-Course-in-a-Box.

        • Huh, so that’s where Moodle came from. Sadly, Moodle is better than Blackboard, though my university uses the latter.

          This is something I’ve thought about at length, with no good solution. There must be a way to both protect proprietary goods in the short term and leave them open to history, I just haven’t found it yet. (Time-locks are too easy to crack.) You bring up a good point about acquisitions and mergers, though. Especially when an acquisition is anti-competitive in nature, a lot of good products and copyrighted material get lost by the time the dust settles.

          On topic, I find myself ethically opposed to transferrable copyright. I think copyright should stay with its creator until they die, or until a certain amount of time has passed in the case of a corporate creator. Then it should be released into the public domain. “Happy Birthday to You” is being held hostage, and there’s no way around that.

  4. IMO, much of what’s wrong with the current copyright system falls squarely on the head of Mickey Mouse. He is the creation of a single individual, who is now deceased (Walt himself). He was created long enough ago that he would have passed into the public domain long ago (and more than once, considering the changes in the law over time).

    But he’s become, and is still in use as, the primary symbol of the company that Walt started. Because of that, the Disney company has had a HUGE economic interest in preventing Mickey from going PD and has been lobbying to keep making the copyright period longer and longer as a result.

    All of which I find ironic, since Disney grew into the huge company it is today largely by making animated feature films of stories from the Public Domain.

    This is why I’ve always disliked the term “intellectual property” and thought it was deceitful. Using the metaphor “property” creates in people’s minds the impression that some of the same conditions of tangible property exist (or should exist) that do not. And the expectation that the “property” must, by law, someday be “given away” is one of the main differences that companies like Disney really would prefer that people forget.

    –Dwayne

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