
Filmmakers fighting “Happy Birthday” copyright find their “smoking gun” - MBCook
http://arstechnica.com/apple/2015/07/filmmakers-fighting-happy-birthday-copyright-find-their-smoking-gun/
======
sandworm101
One cannot discuss long-term copyright without mentioning the mickey mouse
graph.

[https://www.techdirt.com/articles/20090811/0123105835.shtml](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.

~~~
icebraining
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

~~~
mathattack
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.

------
fnordfnordfnord
> _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.

~~~
joesmo
"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.

------
amelius
> 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.

~~~
pavlov
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](https://www.law.cornell.edu/uscode/text/17/302)

~~~
mattlutze
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.

~~~
XorNot
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?

~~~
mattlutze
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.

~~~
icebraining
_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.

~~~
mattlutze
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.

~~~
unprepare
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.

------
kisstheblade
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?

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

~~~
6stringmerc
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.

~~~
logfromblammo
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.

~~~
6stringmerc
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.

~~~
logfromblammo
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.

------
madaxe_again
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.

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

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

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

~~~
kuschku
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.

~~~
bostik
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 :)

~~~
elektromekatron
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.

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

[http://www.hollywoodreporter.com/thr-esq/happy-birthday-
laws...](http://www.hollywoodreporter.com/thr-esq/happy-birthday-lawsuit-
smoking-gun-811144)

------
Mimu
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...](http://www.maitre-
eolas.fr/post/2006/07/21/403-adieu-monsieur-le-professeur-bonjour-madame-la-
sacem)

------
SmellyGeekBoy
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.

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

~~~
Miner49er
Chains seem to never do the original, but small, locally owned restaurants
often do, at least in my experience.

------
wmeredith
> 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.

------
brianhempel
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](http://www.scribd.com/doc/272751583/Birthday-Evidence)

Warner/Chappell's response: [http://www.scribd.com/doc/272870978/Warner-
Chappell](http://www.scribd.com/doc/272870978/Warner-Chappell)

------
xd1936
Why is this in the Apple News section of Ars?

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

