
'Happy Birthday' Hits Sour Notes When It Comes to Song's Free Use - mmastrac
http://www.npr.org/2015/07/12/422327673/happy-birthday-hits-sour-notes-when-it-comes-to-songs-free-use?utm_source=facebook.com&utm_medium=social&utm_campaign=npr&utm_term=nprnews&utm_content=20150712
======
cge
It's a bit aggravating when articles give dates for when something will
"eventually go into the public domain" without a caveat that copyright terms
in the US have been repeatedly and consistently lengthened retroactively.

Going off the view that copyright extensions center around attempts to keep
Mickey Mouse cartoons under copyright (1928 onward), a copyright date of 1935
means it is unlikely that Happy Birthday will _ever_ go into the public domain
if political views do not change.

~~~
vacri
At least Disney are actively and heavily working the Mickey Mouse IP. Everyone
and their dog knows that Mickey Mouse is a Disney icon, and people give money
explicitly to go and see Mickey Mouse at a Disney theme park. The same is very
much not true of the Happy Birthday song.

------
logfromblammo
The history of " _Happy Birthday to You_ " is what first made me absolutely
furious about US copyright law.

The enabling clause reads as follows: " _To promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries._ "

The melody was written in 1892. The altered lyrics were first (verifiably)
published in 1912. And it looks very suspiciously like someone pulled a fast
one in the 1930s to steal the copyrights.

What is clear to me is that it is very difficult to reconcile "limited Times"
with a span of 103 years, the rights are not currently vested in the
[deceased] authors, nor were they fairly paid for exclusive license of those
rights, and progress of the useful arts is not being promoted here.

And that is just _one_ case, which has been heavily researched. I can only
imagine the godawful clusterfuck that must exist for those works whose
pedigrees are less clear.

~~~
gutnor
Well, for that song, that does not matter, it is hugely successful so it made
it into our culture despite everything.

The problem is all the moderately successful art. They matter to a generation,
but they get forgotten because the legal framework is just a bit too much for
the fan to keep them relevant or even to simply preserve them.

I am thinking about a few authors that my grand-father loved. It was stories
about life of teens during the second world war in my country. Plenty of more
successful authors have been preserved so nothing important has been lost, but
that series of book just died. You can´t find it online, can´t find it in the
library. It is probably somewhere, but the point is, I can only look for it, I
can´t actively do something with the books. I can´t publish them, I can´t put
them online. I could maybe publish a sequel, but why would I risk it[0] ?

[0] talking hypothetically here. I´m not an author.

~~~
logfromblammo
You could certainly publish a sequel. You could also re-tell the same story in
your own words using the same characters.

The elements bearing proper names in a book may be protected by trademark, but
if a book is out of print and nearly impossible to find, the requirement that
a trademark be continuously defended by its owner is almost certainly not
being met. Plots, book titles, characterizations, settings, these elements are
not protected by book copyrights. Only the sequence of words on the page is
protected.

I could tell a story about a half-height man who carries a dangerous magical
artifact across the continent, into the very heart of an aggressive and evil
power, for the purposes of destroying it forever. I could tell a story about a
plucky young heroine forced to compete in gladiatorial games by an oppressive
centralized government. I could tell a story about a boy wizard who attends a
boarding school for magical youth, grows in maturity and ability, then defeats
a ruthless older wizard bent upon world domination.

But you can be certain that an army of lawyers would be combing through those
to find out if I ever sequenced three of the wrong words together in the wrong
order. If I instead ripped the story arc from a "lost" out-of-print book,
there is a low probability anyone would notice, there is a lower probability
that a person who noticed could locate and inform the rights-holder, and there
is a miniscule probability that the rights-holder could prove infringement.

But then again, Thicke and Williams still had to pay the Gaye estate for "
_Blurred Lines_ " being too similar to " _Got to Give it Up_ ". And that
raises some questions. How much of an old work can be copied before it
constitutes infringement? There must be hundreds of pop songs based on
Pachelbel's Canon in D. Are they necessarily derivative works, or are they
written that way because that is a chord structure that humans instinctively
find to be pleasing? A finite number of notes has a finite number of possible
note combinations, and only a subset is aesthetically "good". If you replace
two quarter notes with a triplet, is it still essentially the same song? If
you transpose to a minor key, is it new? Would you have to pay a royalty every
time you play the "classic blues riff"? Who would you pay it to?

This is why the public domain is important. It allows younger artists to work
freely, without toiling under the heavy yoke of the old bastards that already
made it and don't want to share the collective patronage of the middle-classed
public with the young and hungry talents who just might try to eat their
lunch.

Overly extended terms represent the political domination of old over young,
and even the dead or never-alive over the living. When I can see that
_nothing_ that has been created during my lifetime will become free (speech)
until long after I am dead, that makes nearly my entire culture pay-per-view,
it pisses me off. It makes me want to pirate certain works that don't meet my
personal standard for reasonable copyright terms, for no other reason than for
political protest.

So if you find those old books, maybe do the right thing for the culture,
which is not the right thing according to the law. Scan them, turn them into
e-books, and seed a torrent. Then, if your grandfather or any of his friends
are still alive, teach them how to download via torrent, and how to read the
downloaded e-book.

It is the responsibility of the older generation to build cultural bridges
with the younger. If you try to erect tollbooths and paywalls all over those
bridges, no one on the other side will want to cross, and the younger
generation will just create their own new, alien, bizarro culture (perhaps one
where trilbys are fedoras!) without any bits of your culture in it. You will
become increasingly disconnected and isolated from society as you age. Then,
when you die, everything that you loved will vanish from history, just because
your generation as a whole was too jealous and avaricious to give anything
away.

That's the legacy of 120-year copyrights. You, in a nursing home, alone,
because none of your grandkids can relate to anything you say. They don't know
who Tom Mix or Gene Autry or Hopalong Cassidy are, and you don't know about
Corridor Digital or Nacho Punch or UCB or College Humor. They never watched
Laverne and Shirley or Happy Days or Gilligan's Island; you never played Elder
Scrolls or Final Fantasy or Grand Theft Auto. You still read real newspapers;
they visit aggregators, follow feeds, and read The Onion. When you stick your
culture in a vault and charge admission, it immediately starts to rot, and you
just might rot with it.

------
Retra
I would use this case as a good measure of some of the problems with
management of intellectual property laws. I mean, it's pretty obvious to
anybody that the song has been appropriated by the culture at large, and that
attributing legal power to any specific entity comes off as completely
clueless.

It's an analogue to political revolution: If people rise up and overthrow
their government, it's probably illegal. But that doesn't mean it's _wrong_.
And it doesn't mean those people should agree to give the government back
because it was illegal.

Happy Birthday was stolen by society. Maybe that was illegal. But too bad.
It's too late to protect it.

~~~
curun1r
The thing is, while it's obvious that this is the case for Happy Birthday,
it's less obviously the case for almost everything else. We incorporate works
of art, and especially music, into our lives and our social interactions. What
kinds of music we like become part of our identity. And the current state of
copyright law doesn't allow for this. We should have copyright exemptions for
non-commercial performances and derivative works.

As just an example of this, when my father died, I put together a slideshow of
photos of him throughout the years. I used four of his favorite songs as the
music, since it connected with memories that I and others have of him. We
played it at his memorial and many people found it quite moving and asked me
to upload it to Youtube. But because it had the music in it, I couldn't.
Luckily Dropbox doesn't have anything like ContentID yet, but it still seemed
wrong that copyright law would prevent me from sharing this piece of my dad
with everyone that knew and loved him. There was no profit to be made from the
sharing and what I wanted to share wouldn't cause any financial harm to the
artists or labels who own the copyrights...if anything it would convince many
people to buy those songs in a format that would work on music players.

It's frustrating that our current laws don't take into account that the
creations that they make become part of our lives. The laws need to strike a
better balance between compensating the creator and realizing that, once
creations are released, they take on a life of their own and become meaningful
to others. Humans seem programmed to share music...it's almost a
tribal/instinctual thing. And no law that tries to controvert basic human
instincts will ever be successful.

~~~
Retra
That's true. I wasn't meaning to argue that this would apply anywhere else,
but Happy Birthday is a place where it clearly applies. It would only be a
problem if some court ruled that the song wasn't public domain or available
for fair use, since it is clear that it should be.

This is somewhat related to something else about business that people often
seem to forget: Many people talk about businesses as though they are machines
for converting employees time to products that they can sell for profit. But
companies _also_ produce culture, and that culture will be exported whether
it's paid for or not. And they have a responsibility to produce good culture.

------
bitslayer
I recommend singing The Barbarian Birthday Dirge
"[http://www.eg.bucknell.edu/~lwittie/sca/song/filk/barbarian_...](http://www.eg.bucknell.edu/~lwittie/sca/song/filk/barbarian_birthday_dirge.html")
aka Viking Birthday Song
[https://www.youtube.com/watch?v=8H8e-2TLgpA](https://www.youtube.com/watch?v=8H8e-2TLgpA)

~~~
rrss1122
We sing the Hispanic Happy Birthday song in my house.

[https://www.youtube.com/watch?v=Nhthj2ztSMY](https://www.youtube.com/watch?v=Nhthj2ztSMY)

~~~
tremendo
That one is just a translation, I bet it's still subject to the same
copyright. If you already speak Spanish, why bother with it, sing "Las
mañanitas" instead
[https://www.youtube.com/watch?v=j8kZ9AjXYzs](https://www.youtube.com/watch?v=j8kZ9AjXYzs)

------
tat45
My favorite podcast "Judge John Hodgman" has the honorable judge singing Happy
Birthday more than once to the tune of the Alphabet Song.

Happy birthday to you! hap- / -py birthday to you! Happy / birthday to you!
Happy birth- / -day to you! Happy birthday / to you! Happy birthday to / you!
Happy birthday to you!

------
simonsarris
What amuses me is that it's generally agreed to be an un-interesting song! But
it's "stuck" to all of us, like a bubble-gum stain on our cultural pavement.

I wonder what (and how long) it will take for a new song to unseat it.

~~~
baddox
> What amuses me is that it's generally agreed to be an un-interesting song!

How do you mean? It's not a Bach fugue, but I wouldn't really call it
uninteresting. It's a more complex melody than the vast majority of songs
you'll hear on the radio.

~~~
jimhefferon
Keep in mind that it is intended for kids. It is interesting to them.

~~~
baddox
I don't think the intended audience is relevant. I still don't see what about
it is particularly uninteresting. It's all diatonic, sure, but if that's the
criterion then a huge amount of music is uninteresting. The melody has a
variety of intervals (including an octave), and suspensions on nearly every
chord.

~~~
jimhefferon
I took the comment to mean that _Happy Birthday to You_ is not interesting
compared to, say, Locatelli's Sonata in G Major. The second is simply a more
ambitious work, is all.

------
cromulent
A year or so ago the Free Music Archive ran a competition "The New Happy
Birthday Song Contest" to create a CCA licensed alternative. The winner is
here:

[https://www.youtube.com/watch?v=A8-pLlK_H-w](https://www.youtube.com/watch?v=A8-pLlK_H-w)

~~~
GrinningFool
It sounds downright depressing. Don't get me wrong, it's quite well done - but
that won for a song to _celebrate_ birthdays?

------
sixothree

        What day is today
        It's X's birthday
        What a day for a birthday
        Let's all have some cake.
    

Probably has just as many copyright problems.

~~~
morganvachon
That meter is suspiciously familiar, be careful where you sing that!

In all seriousness, I wonder how far removed from the original you'd have to
go to be recognizable as "that birthday song" and still avoid a copyright
claim? Obviously your words are different, but the subject is the same, the
meter is the same, and if you stayed in the same key, all you've really done
is some word play.

Maybe draw out your "day", "X's", "day", and "all" for each line into a half
or dotted half note, and reverse last two notes of each line so they ascend
instead of descend. That way most of the meter is preserved and it still feels
familiar, but hopefully no longer infringes.

~~~
cromulent
Futurama created these lyrics with the same tune to avoid the copyright. I
believe they avoided any trouble. Anyone know if they had legal issues?

[http://futurama.wikia.com/wiki/Futurama_Birthday_song](http://futurama.wikia.com/wiki/Futurama_Birthday_song)

~~~
tosseraccount
Speaking of Futurama and Copyright violations ...

[https://www.youtube.com/watch?v=AOqfWj0HqNE](https://www.youtube.com/watch?v=AOqfWj0HqNE)

~~~
37prime
Cristopher Tyng clearly stated that Futurama Theme Song was an homage to
Pierre Henry's "Psyché Rock”.

------
mrfusion
Shouldn't copyright have the same system as trademarks, where once it enters
public vernacular (or in copyright's case hitting a certain level of mass
culture) it's no longer valid?

~~~
netfire
Correct me if I'm wrong, but I thought it was not just enough to have a phrase
enter the public vernacular, but that it would have to be in the vernacular in
such a way that its no longer directly associated with the product that was
trademarked.

I like the general idea though. It seems that if the general public no longer
associate a work of art with the artist or company that holds the IP, it
should go into public domain.

In this case, Happy Birthday probably never would have been popular in the
first place had the copyright been aggressively enforced in the 1920's. In my
opinion, the lack of defense of broad copyright infringement from 1920-1980
should be grounds for copyright invalidation.

Generally copyright has lost its original intent of providing value and
protection to the original creator, while encouraging people to create
something that will eventually become part of the public domain.

~~~
dublinben
>In my opinion, the lack of defense of broad copyright infringement from
1920-1980 should be grounds for copyright invalidation.

This is one of the strongest arguments against automatic copyright renewals.
If a copyright holder wants the full term offered to them under the law, they
should have to affirmatively exercise that right (preferably at some non-
trivial cost).

~~~
techdragon
Affirmative registration would solve a lot of problems with copyright.

------
bcg1
Clearly Warner/Chappell needs to be introduced to YouTube's content ID system.
They only make $2 million a year on "Happy Birthday"?!?! Crazy. They need to
start monetizing birthday part videos to get that income up.

I suspect that there are hoards of infringers uploading Warner/Chappell IP on
a daily basis. These people hate us for our freedom, and must be stopped.

------
anfedorov
What's the best way to follow a lawsuit? I'd be curious what happens to this
one: [http://www.courthousenews.com/2015/03/23/happy-birthday-a-
ca...](http://www.courthousenews.com/2015/03/23/happy-birthday-a-cash-cow-for-
warner-chappell.htm)

~~~
anigbrowl
You can go on the court's website or use an open-access tracker like this one:
[http://www.plainsite.org/dockets/u2yv5yz8/california-
central...](http://www.plainsite.org/dockets/u2yv5yz8/california-central-
district-court/rupa-marya-v-warner-chappell-music-inc/)

But this one doesn't have all the documents. There's a free system called
PACER which allows you to download the filings for any federal court case, but
it costs about 10c/page (although you can get a certain # free every quarter).
As you can see form the link above, litigation generates a _lot_ of paperwork
so if you're interested in a case you can easily run up a large bill on PACER.
Usually people who are interested in litigation share key documents from a
case because court filings are by definition in the public domain. But this is
slow and unreliable and if you're a law nerd the minor procedural filings are
often as interesting as the important documents like the complaint or key
motions.

The reason for the 10c/page PACER fee is to support the digital infrastructure
required to provide it; Congress controls the budget for the federal courts an
is notoriously stingy - perhaps because many members of Congress are
unenthusiastic about funding another branch of government that has the power
to strike down legislation - see for an overview of the funding picture
[http://www.americanbar.org/advocacy/governmental_legislative...](http://www.americanbar.org/advocacy/governmental_legislative_work/priorities_policy/independence_of_the_judiciary/federal-
court-funding.html)

State courts are a whole different ball of wax. Some have everything online,
others don't.

One other thing to be aware of is that if you're interested in a particular
case and you want to know what happened at trial - with all the exciting (?)
cross-examination and 'Objection! overruled,' moments the court transcript is
_not_ an official court document. The court reporters who produce them are
hired by the attorneys and they charge a small fortune for copies. Now,
because the trial is public domain the transcripts are almost certainly in the
public domain too (this is law in the 10th circuit and I don't think it has
been contested elsewhere). So if you can find a copy of the transcript on
PACER* or one of the parties' websites, you're likely free to use it. The
court doesn't hire reporters because they charge a lot - it's a very skilled
job that's not so easy to automate as you might think - and the transcript
only has legal value in the event of an appeal, whose benefit would accrue to
one or other of the parties rather than the court itself.

Some courts have audio recordings of the trial available for free or
relatively cheap, and many appeals courts, including the US Supreme Court,
have recordings of oral arguments that are available for free. As data storage
becomes increasingly cheap then full audio copies of trial proceedings will
probably become the norm, but if you are listening to one then you'll quickly
realize why court reporters charge so much.

* You probably won't find it on PACER because appellate courts generally don't want or need to see the entire trial record, but sometimes you can. Be careful if you do, transcripts often run for hundreds of pages and you'll be billed accordingly.

------
JoshTriplett
If the lawsuit does succeed in getting the song declared public domain, I
wonder how strong a case any past licensees have to recover the fees they paid
for what turns out to be nothing?

~~~
jandrese
I doubt it. The courts generally aren't kind to people making these sort of ex
post facto claims.

I wish there was a punishment for companies that steal from the public domain.
I would also apply this punishment to congressmen that continue to extend
copyright durations well past the point of sanity.

~~~
dev-da0
This would require applying a patchset to the political-moral operating
system. Bernie Sanders 2016. ;)

------
vanous
The happy birthday song (or at least it's melody with some localized words) is
very popular even in non English countries and the fact that everybody knows
it makes it super easy to get people join in singing. But, it's been a mixed
blessing. We have been trying to change this and it really makes an extra
effort to introduce and get established nice local celebration song in our
mother tongue.

------
fnordsensei
How does copyright law work internationally? Could the song be in the public
domain in other countries, or does the fact that it originated in the US mean
that US copyright law applies internationally?

~~~
CuriousSkeptic
I don't think the law follows the work. Rather the law follows the
jurisdiction, if that's the term.

There are international agreements of how such laws should work, but Not all
countries has a concept of public domain, or fair use for that matter.

In Sweden copyright is split in two parts, such that the economic right (the
right to produce copies or publically perform the work) is transferable and
lasts for limited amounts of time (life plus 70-years for the work as such, or
50-years for a given rendering, an album f.ex.).

The moral rights isn't transferable and never expires. These include the
authors right to be credited for the work, and also include the states right
to interfere if the cultural interest of the work is threatened (no idea what
this would entail, or if this has ever been invoked).

------
dev-da0
This implies that any public performance on a stage of Happy Birthday to You
recorded or not, is subject to licensing fees or fines. This is bloody nuts.
Enough is enough!

