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'Happy Birthday' song copyright is not valid, judge rules
- spodek 11y agoThen let me be the first to draw clearly from the public domain: Happy birthday to you Happy birthday to you Happy birthday dear [someone] Happy birthday to you! (I hope the ruling doesn't get reversed and let Warner come after me)
- linksbro 11y agotechnically its not in the public domain, it's an orphan work, since the ruling says warner had no grounds to claim ownership of the copyright on the famous arrangement. someone can still come forward and present the evidence that secures them the copyright until the end of its term https://en.wikipedia.org/wiki/Orphan_works https://en.wikipedia.org/wiki/Orphan_works
- ubernostrum 11y agoThere are multiple issues, and today's ruling only seems to have covered one of them (namely, whether the Warner/Chappell copyright covers the song, or just an arrangement of the song -- the judge ruled it was the latter, which leaves Warner/Chappell without a copyright claim to the song). The next important step is a piece of evidence unearthed during discovery in this lawsuit: a songbook, whose fourth edition from 1922 contains the lyrics of "Happy Birthday". Since the lyrics had been published in 1922, and the melody is known to date to the 1890s, there is no way for either to currently be protected by copyright in the United States, as all copyrights dating from prior to 1923 are conclusively known to have expired.
- noobermin 11y agoOff by just a year, what a crazy coincidence.
- ubernostrum 11y agoGiven that 1922 was the fourth edition, it's likely that the lyrics were actually published earlier. It's just that you don't need to go back further, since once you reach a date earlier than 1923 you know it's public domain.
- Natsu 11y agoWell, unless they decide to retroactively extend copyright and bring works that were once open back under copyright... See also: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611311 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611311
- e12e 11y agoI read that in Micky Mouse's voice.
- gnaritas 11y agoIs it, or is that just the most likely year anyone would start their search for prior art?
- josteink 11y ago> someone can still come forward and present the evidence that secures them the copyright until the end of its term You mean with the current copyright regime, whoever manages to produce good enough forged evidence, can collect on this forever? Because it's well known that copyright no longer expires. And that means there's no end of term either.
- mtgx 11y agoDoes that mean Warner infringed on copyrights and should probably be punished for it?
- jotux 11y ago>that secures them the copyright until the end of its term Practically, once you are granted copyright it's secured until Disney goes out of business thanks to the Mickey Mouse Protection Act[1] and inevitable future Disney lobbying. [1] https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
- ohashi 11y agoSo we can finally see birthday songs in television and movies now instead of the awkward work-arounds. Good.
- hayksaakian 11y agoi think i know what you're talking about, but do you have any youtube links or know any search queries to find them?
- andrewstuart2 11y agohttps://vimeo.com/55555820 https://vimeo.com/55555820 Or just Google "TV Birthday songs."
- ljk 11y agoone of my favorites is Community's cold open - https://www.youtube.com/watch?v=wwQsSLeVlmg https://www.youtube.com/watch?v=wwQsSLeVlmg
- deleted 11y ago[deleted]
- minikites 11y agoOne of my favorite scenes in Sports Night: --- Dan Rydell: I've got the intellectual property cops crawling up my butt. Isaac: The intellectual property cops? Dan Rydell: Yeah. Isaac: Are crawling up your butt? Dan Rydell: The heat's all over me. Isaac: What the hell are you talkin' about, Dan? Dan Rydell: I sang happy birthday to Casey on air. Isaac: When? Dan Rydell: Well, on his birthday, Isaac... Isaac: Someone holds the copyright to "Happy Birthday"? Dan Rydell: The representatives of Patty and Mildred Hill. Isaac: Took two people to write that song? Dan Rydell: Go figure.
- zik 11y agoIt's even more impressive since they only claim the lyrics - the melody came from an earlier song called "Good Morning". And since there were two sisters and only four unique words in the song that's basically two words per sister.
- torgoguys 11y agoAssuming this ruling stands, does anybody know if the people who previously paid for a license to use Happy Birthday can get their money back? EDIT: See below. Apparently the plaintiff's attorneys intend to try.
- spiralpolitik 11y agoIf they could demonstrate that the licensor knew that the copyright was suspect then they might have a case for misrepresentation or fraud. Given the potential amount of money involved I'm sure some lawyer will give it a go.
- FireBeyond 11y agoGiven facts like the copies of the original score had a big 'smudge' over the copyright line that clearly proved that Warner Bros never had any claim to things (which isn't visible in the original, that clearly reads), there's a decent case to be made for bad faith. WB has milked this for years and made millions, knowing it had zero right to the song.
- ipsin 11y agoThat was the point of the class action mentioned in the article.
- torgoguys 11y agoAh, I see that. The article has been updated since first posted and is much longer now. Thanks for pointing it out.
- snogglethorpe 11y agoI suppose like most class-action suits, each participant will get about $0.43 and only the lawyer will really benefit. But in this case, it's still a great thing, as the main goal is punitive, to make copyright vultures feel some pain...
- cardamomo 11y agoPhew! Now I can start singing "Happy Birthday" to my friends and family instead of Stravinsky's "Greeting Prelude!" https://www.youtube.com/watch?v=OJAEepA0nPk https://www.youtube.com/watch?v=OJAEepA0nPk
- ataylor32 11y agoThere is also this: https://www.youtube.com/watch?v=2f2PCWYAZQc https://www.youtube.com/watch?v=2f2PCWYAZQc
- mninm 11y agoI prefer http://youtu.be/8H8e-2TLgpA http://youtu.be/8H8e-2TLgpA
- anon4 11y agoWhat's wrong with "For he's a jolly good fellow"?
- kuschku 11y agoPeople all over the world can sing "Happy Birthday", but you’ll get just weird looks from most for "For he's a jolly good fellow"?
- FroshKiller 11y agoThat's pretty Amerocentric of you.
- kuschku 11y agoEh, I'm German – and saying, people here will sing "Happy Birthday" with english lyrics, but not "For he's a jolly good fellow".
- FroshKiller 11y ago
- jheriko 11y agowasn't this already 'de facto' invalid?
- jheriko 11y agoi appreciate this downvote, but millions of people have violated this copyright unknowningly... afaik this makes it invalide 'de facto' if not 'de jure'.
- WiseWeasel 11y agoTrademark can be lost if not enforced, not copyright.
- jheriko 11y agoany law is unreasonable to enforce if the vast majority would break it unknowningly. this is the point of making the distinction between 'by the letter of the law' and 'in reality'.
- eru 11y agoYou can still enforce that law against people you don't like..
- kuschku 11y agoYou can’t in some jurisdictions. If something does not violate the constitution, and it has always been done in a specific way, then, unless a law directly targets it, it stays legal. (in Germany). Called Traditional law, or Traditionsrecht. IANAL.
- georgemcbay 11y agoCopyright doesn't work like that, you may be confusing it with trademark. (Just to be clear, I'm not one of the people that downvoted you.. seems like a silly thing to downvote on when a response is much more useful to everyone).
- deleted 11y ago[deleted]
- caycep 11y agoThis includes "Happy birthday, Mr. President"?
- torbit 11y agoThe copyright will end in December 31, 2016 for the EU
- analog31 11y agoHas it been invalidated in the EU? Oddly enough, the expiration date of a copyright is a birthday of sorts.
- torbit 11y agoah sorry. updated to "will expire".
- cromulent 11y agoIf it only covers the words, then can we still sing Paljon Onnea Vaan in Finnish? https://www.youtube.com/watch?v=4FI6c_r3dKg https://www.youtube.com/watch?v=4FI6c_r3dKg
- anon4 11y agoMy hunch is that a translation is obviously a derivative, therefore you cannot. Edit: of course now you can, but before this ruling you couldn't. Or to be pedantic, you still can't, but there's noone to stop you.
- lutorm 11y agoDoes American copyright law really extend to Finland? (I assume few people sing the Finnish version in the US...)
- delinka 11y ago"...as part of a profit-making enterprise." Um ... welcome to capitalism? Seriously, Warner is a for-profit corporation. That makes them a profit-making enterprise. This kind of writing is rather disingenuous. However, one could indeed argue that collecting license fees on this song was a racket.
- philipov 11y ago"profit-making enterprise" refers to the person or people singing the song, because if they are not making a profit, they can claim fair use. The point of the statement is that you don't have to pay royalties for singing "Happy Birthday" to your mother.
- delinka 11y agoI can see how I've misapplied the clause in the sentence. Thanks. Not sure if I should delete the comment ...
- jbuzbee 11y agoMaking a profit doesn't mean you can't claim fair-use: https://www.techdirt.com/articles/20140909/15564328465/big-win-fair-use-even-when-profit-big-loss-hot-news-fox.shtml https://www.techdirt.com/articles/20140909/15564328465/big-w...
- calebegg 11y agoAlso: https://en.wikipedia.org/wiki/Leibovitz_v._Paramount_Pictures_Corp%2E https://en.wikipedia.org/wiki/Leibovitz_v._Paramount_Picture...
- jameshart 11y agonot making a profit is certainly not either a necessary or a sufficient condition to claim fair use. Fair use can be affected by whether use is 'commercial', which is not the same as 'profit-making'. But you can make a profit from a work of parody and claim fair use (think about for example use of parody in advertising) and you can also copy something in a no commercial setting, and have no claim to fair use.
- doughj3 11y ago> ...a copyright filed by the Summy Co. in 1935 granted only the rights to specific arrangements of the music, not the actual song.... "Because Summy Co. never acquired the rights to the Happy Birthday lyrics," wrote King, "Defendants, as Summy Co.'s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics." So the lyrics are not covered, but is the melody?
- matthewrudy 11y agoThe melody is the melody from "Good Morning to You" which dates to 1893.
- triangleman 11y agoSo let me get this straight. Humming the birthday song without actually singing the words was perfectly acceptable for public performances since 1988? (1893 + 95 years)
- cookiecaper 11y agoThe copyright on all works issued prior to 1923 expired no later than December 31, 1978 if my reading of this PDF [0] from the U.S. Copyright Office is correct. In particular, if the melody had a copyright date of 1893, it would've expired no later than December 31, 1949, because copyrights could only be held for a maximum of 56 years (one 28-year initial term and the potential for one 28-year renewal). [0] http://www.copyright.gov/circs/circ15a.pdf http://www.copyright.gov/circs/circ15a.pdf
- 6stringmerc 11y agoYeah, pretty much from what I understand. If somebody can't tell the difference between "Good Morning to You" and "Happy Birthday to You" based on the melody line, then no sweat!
- bickfordb 11y agoYou can't blame Warner, they're obviously just protecting artists rights to be creative and innovate.
- mcphage 11y agoI mean, I agree with your sarcasm. But on the other hand, you're kinda right—instead of everyone singing the same Happy Birthday song, every movie and chain restaurant has to come up with their own version. And maybe one of them would have been better, and caught on instead. Of course, they all were terrible.
- cbd1984 11y agoThey weren't traditional. As simplistic and potentially annoying as the traditional "Happy Birthday" song was and is, it's part of the birthday tradition shared by a lot of English-speaking people, so it's special. It's simply special, and nothing can replace it. Ideally, works should be public domain long before they're traditional to that extent. It's just creepy for a company to assert ownership rights on some piece of culture that's been passed down through your family for generations.
- tedunangst 11y agoThat's a peculiar way to disincentive success. Hope to be successful enough to make some royalties, but not so successful as to be traditional because then you get nothing.
- curious_slinky 11y agoWell, you still get the satisfaction of creating a deeply ingrained cultural phenomenon.
- qq66 11y agoWell, I do believe that a work can become so important that it shouldn't be copyrighted anymore. The most notable example is Martin Luther King's "I Have a Dream" speech, which is a national artifact more important than anything in the Smithsonian. It should be freely distributable to everyone in America who wants to watch it, instead it is under enforced copyright. Perhaps the government should purchase the copyright using eminent domain in cases like this.
- sandworm101 11y agoFyi, for anyone that has paid for a license. The fact that the copyright is dead does not necessarily mean licensing contracts are also void. The obligations of contracts can and sometimes do survive the disappearance of underlying IP rights. If someone agreed to pay Warner 10$ for the right to sing Happy Birthday each time their movie airs on TV, that contract is likely still in effect. Consideration (what one party gives in a contract) is measured at the point of formation, not years later. An agreement to not to sue someone is not premised on the validity of that theoretical lawsuit. An agreement to not attempt something is still an agreement even if said attempt would prove futile. There are cases where a contracting party has been forced to shell out for something anyone else could use for free. So if anyone reading this has signed a licensing agreement, talk to your lawyer before ripping it up.
- zik 11y agoOn the other hand there's now the option to pursue them in court for recovery of all the royalties already paid, since they didn't have the right to claim them in the first place. I think we'll be seeing a lot of that in the near future.
- sandworm101 11y agoOnly if they sold something they knew they did not own. Then there is a debate re fraud. But such arguments only work where they attempted to sell an actual license. If they simply agreed not to sue, forbearance rather than license, those contracts may well remain valid.
- callum85 11y agoNot a lawyer, but here's how I see it: Lawsuit: "You approached me and gave me false information that has cost me money. Pay me to cover all my losses resulting from this false information." How (or even whether) the defendent benefited from the losses doesn't even need to come into it, as far as I can tell.
- mark-r 11y ago
- joe5150 11y agoI hope our favorite fast casual dining establishments carry on the tradition of singing bad and awkward “Happy Birthday To You” substitutes in spite of this
- jayess 11y agoA summary of the argument is in the judge's order: "The distinction between the music and the lyrics as copyrightable elements is critical in this case because both Parties agree that the Happy Birthday melody was borrowed from Good Morning and entered the public domain a long time ago. The Parties disagree only about the status of the Happy Birthday lyrics. Defendants contend, in brief, that the Hill sisters authored the lyrics to Happy Birthday around the turn of the last century, held onto the common law rights for several decades, and then transferred them to Summy Co., which published and registered them for a federal copyright in 1935. Plaintiffs challenge nearly every aspect of this narrative. They argue that the lyrics may have been written by someone else, the common law copyrights in the lyrics were lost due to general publication or abandonment before the lyrics were published, and the rights were never transferred to Summy Co." Page 10: https://www.unitedstatescourts.org/federal/cacd/564772/244-0.html https://www.unitedstatescourts.org/federal/cacd/564772/244-0...
- unavoidable 11y agoThe real holding (the dispositive part) is this: "Because Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.'s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics". And to be somewhat pedantic (an occupational hazard of being a lawyer), the judge didn't hold that the copyright was invalid per se, only that Warner can't prove that they own the copyright. I doubt anyone else would be able to prove in 2015 that they own the copyright to Happy Birthday, but the possibility is open.
- fncypants 11y agoHaven't read the order, but your analysis suggests that its an orphaned work. Which leads one to a whole other problem with copyright law...
- SarahofGaia 11y agoThat's what I was thinking when I read the article. Still, although it seems it'd be (most likely) technically an orphaned work, the circumstances mean that it most likely is a de facto public-domain work, I would think.
- kendallpark 11y agoIt's nice to see a sane IP ruling for once.
- carbocation 11y agoUsing Google Books, you can quickly find works much older than the 1922 citation in this case, and which contain "Happy Birthday to you" in its modern form. Here, for example, is one from 1911: > https://books.google.com/books?id=TfoaAAAAYAAJ&pg=PA63&dq=%22happy+birthday+to+you%22&hl=en&sa=X&ved=0CB0Q6AEwAGoVChMIm-zet5SMyAIVQRU-Ch2ntgZD#v=onepage&q=%22happy%20birthday%20to%20you%22&f=false https://books.google.com/books?id=TfoaAAAAYAAJ&pg=PA63&dq=%2... "Happy birthday to you, Happy birthday to you, Happy birthday, Dear John, Happy birthday to you." It even says that it's sung to the "Good Morning" tune.
- agf 11y agoI believe the 1922 citation is relevant because it contains specific licensing information for "Happy Birthday", which the source you cite lacks. So the one you cite could have been printed without permission, and wouldn't constitute the Hill sisters abandoning copyright.
- chc 11y agoEven if it were being used without permission, the fact that it could be used at all in 1911 suggests that it is too old to be covered by copyright, doesn't it?
- josteink 11y agoCopyright is supposed to be limited, but eh you know, somebody who descends from someone who around the 1911s wrote a one song, honestly, really, still very much deserves money for their hard work. Otherwise those guys back in 1911 will go back in time and undo what they've done, because it was clearly not worth it. Back in the real world, modern copyright is pretty messed up.
- matthewbauer 11y agoThat would make a fascinating scifi novel.
- mark-r 11y agoDoes anyone know if this judgement is valid nation-wide, or if it only covers a single circuit? Is there any possibility of appeal?
- fncypants 11y agoIt is a lower court judgment. It is not final, meaning Warner can (and probably will) appeal to a circuit court. Until all the appeals run out, the judgment is not final. Once the judgment is final (because Warner does not appeal or because they lose all appeals), it will have preclusive effect nationwide.
- mspokoiny 11y agoI agree with judge
- IvyMike 11y agoSomeone needs to call Jason Scott and the Archive Team to save all of the ersatz Happy Birthday songs sung at restaurants. "Oh, you're at the Olive Garden and you're having lots of fun! It's your birthday birthday, and you're number one!"
- burritofanatic 11y agoAs a note, this is why they sing the song, Oh He's a Jolly Good Fellow in a lot of movies instead of Happy Birthday.
- cobweb 11y agoThe weird thing about the song is that it's just so clunky. When you hear it out of context it's pretty horrible.
- deleted 11y ago[deleted]
- organsnyder 11y agoXKCD is celebrating the event: http://xkcd.com/1581/ http://xkcd.com/1581/
- mc808 11y agoI'm not sure which is worse: that this ancient song is/was still "protected" by copyright, or that Warner has been able to collect so many millions without a valid copyright claim.
- wolfgke 11y agoSince the copyright of the song is proven not to be valid, please pay any any revenues that you ripped off people back to them (including interest) or if it proves to be too complicated to find them all, at least transfer this money into a fund for helping people defend against dubious copyright claims. Thanks.
- callum85 11y ago"I guess I need to apologize to my parents, friends, and the staff at Chuck E. Cheese's for all the times I called the cops on them." — title text from today's XCKD http://xkcd.com/1581/ http://xkcd.com/1581/
- bnj 11y agoYou have to wonder if the copyright would have been allowed to be invalidated if it wasn't due to expire next year anyway.
- drostie 11y agoSo a quick summary of the ruling: This was a movement for summary judgment which requires a very high standard: they are basically responding to a threat of a lawsuit by asking a judge to declare in advance that this lawsuit can never truly happen; effectively they are asking a judge to affirm that the threat is really, truly BS. They gave a lot of reasons why the lawsuit might be invalid from the get-go, from "how do we know that the purported author was actually the first to write this?" to "how do we know that she didn't abandon her copyright interest before the critical date?"... but for a summary judgment, you don't need to show what's true but rather what's arguable. The judge denies the vast majority of these complaints by saying that even though the plaintiffs might have given some good evidence that those things are what happened, they didn't show that it was inarguable. The sticking point is that the copyright today is only on the words, not the melody and various arrangements, which have long since passed into the public domain. However, according to the judge, there is absolutely no evidence that the copyright for the words was ever transferred to that company alongside the words. References to the various lost agreements between the parties generally explicitly say that they were agreements to transfer the music, and make no explicit mention of lyrics; and the lawsuits that the company began litigating similarly complained about the use of melodies or arrangements rather than complaining about the words being used. On this one narrow point the judge said, "no, that's inarguable: there is no argument that in all of this evidence you've brought me, that there is nothing transferring lyrical rights to the company.
- TazeTSchnitzel 11y ago> no evidence that the copyright for the words was ever transferred to that company alongside the words I'm guessing that was meant to be "[...] alongside the melody"?
- deleted 11y ago[deleted]