Tuesday, 29 September 2015

Happy Birthday song belongs to everybody

The melody of “Happy Birthday to You” comes from the song Good Morning to All which has been attributed to American siblings Patty Hill and Mildred Hill in 1893. It was published in a book of sheet music called Song Stories for Children by the Clayton F. Summy Company. However, the claim that the sisters composed the tune is disputed. None of the early appearances of the Happy Birthday to You lyrics included credits or copyright notices. The Summy Company registered a copyright in 1935, crediting authors Preston Ware Orem and Mrs. R. R. Forman. In 1988, the Warner/Chappell Music company purchased the original company owning the copyright for US$25 million, with the value of the Happy Birthday song estimated at as much as US$5 million. Based on the 1935 copyright registration, Warner claimed that the United States copyright will not expire until 2030, and that unauthorized public performances of the song are technically illegal unless royalties are paid to Warner/Chjappel.                        

Of course that would be ridiculous. How would they collect royalties from millions of people who sing the song at birthday parties? Don’t worry about it. Our constitutional rights that gives all of us freedom of speech is our protection to sing this song at birthday parties without having to pay a royalty or seek permission to sing it so there is no real threat the cops will kick down your door and slap cuffs on the kids during a party.

The case of Happy Birthday vs. the World gained traction two years ago when filmmakers including Jennifer Nelson, who was working on a documentary about the song, filed a class-action lawsuit. They believed the song was already in the public domain so they objected to licensing fees. Warner/Chjappel on the other hand wanted the exclusive right to authorize the song's reproduction, distribution, and public performances pursuant to federal copyright law.

By one estimate, the song is the highest earning single song in history, with estimated earnings since its creation of US$50 million. In the European Union, the copyright of the song was set to expire no later than December 31, 2016. American law professor Robert Brauneis, who extensively researched the song, concluded in 2010 that he song is almost certainly no longer under copyright. In 2013, based in large part on Brauneis' research, Good Morning to You Productions, a company producing a documentary about Good Morning to All, sued Warner/Chappell for falsely claiming copyright to the song. In September 2015, a federal judge declared that the Warner/Chappell copyright claim was invalid, ruling that the copyright registration only applied to a specific piano arrangement of the song, and not to its lyrics and melody.         They claimed that Warner/Chappell had “either has silenced those wishing to record or perform or has extracted millions of dollars in unlawful licensing fees from those unwilling or unable to challenge its ownership claims.”                                                      

The Copyright Term Extension Act of 1998 extended copyright terms in the United States. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The 1976 Act also increased the extension term for works copyrighted before 1978 that had not already entered the public domain from twenty-eight years to forty-seven years, giving a total term of seventy-five years.

The 1998 Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date.    

Under this Act, additional works made in 1923 or afterwards that were still protected by copyright in 1998 will not enter the public domain until 2019 or afterward (depending on the date of the product) unless the owner of the copyright releases them into the public domain prior to that.         

As of this week, if the significant court ruling written by Mr. Justice George King of the United States District Court in Los Angeles in his 43-page decision he gave on September 22, 2015 stands, the music and lyrics of Happy Birthday to You ” is no longer under copyright protection.  Does that mean that those TV producers and film producers don’t have to pay royalties if they include this song in the movies they produce?  Possibly if a higher court overturns Mr. Justice George King’s ruling.

The judge was hearing the case of Happy Birthday vs. the World gained traction two years ago when filmmakers including Jennifer Nelson, who was working on a documentary about the song filed a class-action lawsuit. They believed the song was already in the public domain. They objected to licensing fees. The plaintiffs argued that the song's copyright expired no later than 1921 which is more than 120 years after the melody to which the simple lyrics of Happy Birthday to You was was first published.

Here is an interesting question. Should anyone singing The Lord’s Prayer and/or Amazing Grace in a public function have to pay royalties for singing those two songs?

The Lord's Prayer’s music was written by Albert Hay Malotte in 1935. In 1947, when I was 14 years of age, I sang the Lord’s Prayer at a concert.  A great many world famous singers have also sung the Lord’s Prayer. When Pope Francis was in Philadelphia on September 26, 2015, he watched and heard the world-famous tenor, Andrea Bocelli sing that prayer while he was             accompanied by an orchestra and a choral group. Aretha Franklin also sang Amazing Grace at that same function. Did anyone have to pay royalties for the performance for the music to those to pieces?  If so, should they have had to pay royalties for singing those two iconic songs at that event?

Music and lyrics written by an American author and published in 1922 or earlier are in the Public Domain in the United States and are free to use, however, more contemporary versions are copyrighted. Amazing Grace, Jesus Loves Me. etc., had fallen into the Public Domain long ago and therefore can be used without permission or payment.

In 2004, the publishers of Woody Guthrie's This Land is Your Land settled a lawsuit against the Internet animation producer Jib Jab Studios over its use of the song in a popular short feature on the presidential election. Jib Jab had claimed its use was permissible because it was a parody and Guthrie's tune was in the public domain. Nonetheless, the studio settled the case by agreeing to pay The Woody Guthrie Foundation 20 percent of the profits it earned from its parody.

The question I raise in this article is whether or not the decision of the judge of the United States District Court in Los Angeles has precedence over other American States other than California?  No, it does not however it certainly has an effect on the music and cinema industry in California.

The Warner/Chappell company will in all likelihood file an appeal to the court of appeal and if they lose that appeal, they will probably file an appeal to the Supreme Court of the United States. I can understand why they will file an appeal. This little song is a big source of income to that company. According to estimates, the song, Happy Birthday to You has generated annual revenues of $2 million for that company.   

This recent court decision is a great victory for musicians, artists, and people around the world who have waited decades for this decision. If the song remains in the public domain, then sing out loud when referring to that iconic song by paraphrasing Martin Luther King—“Free at last! Free at last!  Thank God, our song is free at last!” 

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