Copyright is certainly in the forefront of many minds across the world these days. This very day the House passed a the PRO IP act, a rather controversial intellectual property bill which “clarifies” that registration is not required for criminal enforcement (“clarify” is a funny term for this, as to receive statutory damages a formal registration is required), and creates a copyright enforcement agent that works directly with the President. This is still some time off, as the Senate has yet to introduce a bill on the subject. See Public Knowledge for further detail on this one. Elsewhere, old concepts like “orphaned works” are coming back into light, and the world of public domain is creeping up on the first Beatles recordings in the UK.
When people think of the absurdity in the length modern copyright a few great examples come to mind. A. A. Milne’s “Winnie the Pooh,” works of Y.B. Yeats, and Franz Kafka, and Hemingway’s “The Sun Also Rises” are all still under copyright. The song “Yes, We Have No Bananas.” The damned mouse that many credit with these extensions.
And then there’s this song. There’s the reason all the chain restaurants sing their own horrible, horrible renditions of songs for birthdays. “Happy Birthday To You” is still protected by copyright law, and still makes a ton of money for its owner, a subsidiary of AOL Time Warner (I wish I were kidding). Up to $2 million a year. The work maintains its “temporary exclusive monopoly,” even though the two school teachers (and sisters) who supposedly wrote it have been dead for years…
…or does it? Is that story even true? What should we make of the old “Happy Birthday” anecdote?
The Patry Copyright Blog highlighted this week the work of Professor Robert Brauneis at The George Washington University Law School – an institution I’m more than a little proud to say I’ll be joining in the fall. Brauneis has released a 67-page paper entitled “Copyright and the World’s Most Popular Song,” exploring whether or not the song is in fact still protected by copyright law. Brauneis not only makes the claim that the song should not be valid under copyright, but shatters many of the of the assumptions of the creation myth surrounding the song.
The claim that “Happy Birthday to You” is still under copyright has three principal weaknesses. Most significantly, there is a good argument that copyright in the song has never been renewed. Under applicable law, the original term of copyright in the song ended in 1963. If no renewal application was timely filed, the song would have entered the public domain at that time. The only renewals filed were for particular arrangements of the song – piano accompaniments and additional lyrics that are not in common use. It is unlikely that these renewals suffice to preserve copyright in the song itself. Second, the first authorized publication of “Happy Birthday to You,” in 1935, bore a copyright notice that was almost certainly not in the name of the owner of copyright in the song. Under the law in force at the time, publication with notice under the wrong name resulted in forfeiture of copyright protection. Third, the current putative owner of copyright in “Happy Birthday to You,” the Summy-Birchard Company (a wholly owned subsidiary of Warner/Chappell Music, Inc.), can only claim ownership if it can trace its title back to the author or authors of the song. Yet it appears that the only possible authors to whom it can trace title are Mildred and Patty Hill themselves, and there is scant evidence that either of them wrote the song. (There is plenty of evidence that they wrote the song “Good Morning to All,” but that song had different lyrics.)
Given this clear framework for its injection into the public domain, it’s amazing the song hasn’t made it there yet. This raises three clear issues, according to Brauneis: first, the lack of any litigation challenging whether this work is the public domain is more than a little surprising, considering how much bank it draws in. Second, the total non-enforcement of this copyright for twenty of its early years in the 1920s and 30s raises a good point about the validity of the orphaned works argument – after all, is it fair or right for a songwriter to tacitly permit unauthorized uses for two decades, and then all of a sudden decide to enforce the copyright? The third point I could put in no clearer terms than his own: “it is clear that as copyright term lengthens, it will become more and more difficult to gather evidence relevant to determining the validity of contested copyrights. It is now possible for a work to still be under copyright long after not only the death of its author, but after the death of anyone who knew the author, which makes it very difficult to present testimony about the circumstances of the work’s creation.”
From these opening arguments Brauneis continues to recount very clearly the history of the Hill sisters – Mildred Jane Hill and Patty Smith Hill (no joke) and their interesting history which brought them to hobnob with the likes of Francis W. Parker, for whom my high school was named. Mildred was an accomplished ethnomusicologist, and Patty a Columbia professor of childhood education and former kindergarten teacher (perhaps this is where the “kindergarten teacher myth comes from, though Mildred was most certainly not a teacher). While Mildred was writing songs and Patty was still teaching kindergarten, the two penned a series of songs in a book entitled “Song Stories for Kindergarten,” which included a song entitled “Good Morning to All,” the melody of which evolved to the song we all know and love. The melody was not a moment of spontaneous brilliance, but a calculated song using years of ethnomusicological experience.
For more details on the growth and curious history of the song, check out the report (you can download a PDF of the whole thing here). I admit as of the time of writing I’m only half way through the thing, but I wanted to post this up before everybody went to bed. Read it and soak it in – I’ll be do a treatise on orphan works soon which I’m sure will bring this up as well.