'Happy Birthday' Hits Sour Notes When It Comes to Song's Free Use

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

by mmastrac • 11 years ago

78 57 11 years ago

npr.org

simonsarris• 11 years ago

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.

theseatoms• 11 years ago

It's not just science that progresses one death at a time.

baddox2• 11 years ago

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.

jimhefferon2• 11 years ago

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

twerquie• 11 years ago

Agreed, it's actually a rather difficult melody.

bitslayer• 11 years ago

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

daeken• 11 years ago

I came here to recommend the same thing! Growing up in the SCA, the birthday dirge is my standard.

pavel_lishin2• 11 years ago

My metal-loving friend's birthday is coming up soon - time to teach everyone this song.

anthony_d• 11 years ago

That's pretty close to what my parents sang when I was a child. Loved it. Especially when I had friends over.

rrss1122• 11 years ago

We sing the Hispanic Happy Birthday song in my house.

https://www.youtube.com/watch?v=Nhthj2ztSMY

tremendo• 11 years ago

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

sixothree2• 11 years ago

    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.

pavel_lishin2• 11 years ago

And you smell like one, too!

dev-da05• 11 years ago

Robin laid an egg

(Unfortunately, the melody is protected too because the parody defense requires a legitimate (subjective interpretation) parody.)

morganvachon• 11 years ago

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.

cromulent2• 11 years ago

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

sixothree2• 11 years ago

Apologies. I clearly forgot to cite the source for this. It's from a television cartoon Futurama.

vacri2• 11 years ago

The Futurama birthday song is not the same melody or meter as the Happy Birthday song.

https://www.youtube.com/watch?v=ATyHIT5LV8g

JoshTriplett• 11 years ago

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• 11 years ago

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-da05• 11 years ago

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

anfedorov• 11 years ago

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...

anigbrowl2• 11 years ago

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...

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...

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.

Retra2• 11 years ago

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.

dublinben2• 11 years ago

I think it's unnecessary to use such defeatist language. Nothing has been stolen here. Happy Birthday entered the public commons known as 'culture' and therefore belongs to nobody. One group here is trying to usurp this song from the public and extract rent for nothing. If anything, they are the ones "stealing" something from society.

curun1r• 11 years ago

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.

Retra2• 11 years ago

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.

anigbrowl2• 11 years ago

Happy Birthday was not 'stolen by society.' The whole basis of the legal case is that the song was already in the public domain by the time the copyright was registered on the arrangement in 1935, either by actively encouraging its public use or through constructive abandonment of copyright (a somewhat debateable legal theory) by allowing its use in multiple films, stage performances etc. prior to registration.

eevilspock• 11 years ago

Your comment and all of the replies reveal how much our culture is bound up with a notion of private property as a self-evident and inalienable right, rather than a as social contract. Yes, you and some others are agreeing that it isn't theft, but everyone is bending over backwards to justify that conclusion.

For me, that fact that we give anyone a 100-year monopoly on something that has probably recouped the creator's "investment" a million times over reveals a flaw in our system.

mrfusion• 11 years ago

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?

gress• 11 years ago

That would create a lot more jobs for copyright attorneys whose job it would be to create byzantine licensing schemes and aggressively bully people to stop valuable copyrights from being deemed to have become a cultural property.

bediger4000• 11 years ago

I think there's a case to be made that you've just stated the most important reason for "IP" law to exist.

netfire• 11 years ago

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.

dublinben2• 11 years ago

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).

dev-da05• 11 years ago

"Equal protection" redress perhaps?

logfromblammo2• 11 years ago

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.

1ris• 11 years ago

"Progress of Science and useful Arts," has be stretch to an extreme, if porn is copyrightable, too.

gutnor• 11 years ago

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.

logfromblammo2• 11 years ago

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.

cromulent2• 11 years ago

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

GrinningFool• 11 years ago

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

cge• 11 years ago

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.

vacri2• 11 years ago

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.

tat45• 11 years ago

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!

vanous• 11 years ago

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.

bcg1• 11 years ago

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.

fnordsensei• 11 years ago

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• 11 years ago

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-da05• 11 years ago

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!

'Happy Birthday' Hits Sour Notes When It Comes to Song's Free Use

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