Last week, Stephen Colbert did a hilarious segment about the copyright of the song “Happy Birthday”, noting the litigiousness of Warner Music and the way they hound any potential violators. Stephen’s substitute, an arrangement of “The Star-Spangled Banner” with alternate lyrics, is a particularly genius suggestion, and the bit becomes part of a long comedic tradition of attempts to avoid the wrath of Warner. By using a song in the public domain like the National Anthem, Stephen is safe, even in his public performance–though imagine if one had to clear each use of the National Anthem or pay a license for every time it was played; that would probably bankrupt most kickball leagues.
(Side Note: The technical difficulties graphic that Stephen uses cracks me up every time, though it should be stated that The Critic was the master of that particular gag. Also, the birthday hat for the silent lawyer was a great touch. Comedy’s forged in the subtleties, folks.)
So it’s not exactly news to most people that somebody owns the copyright to a song that is familiar to just about everyone, and gets sung thousands of times everyday. Not only that, it’s also well-known that the public performance of that song has several issues (as I mentioned, there have been numerous comedic bits built on that fact). But did you know that in the past year that the copyright was challenged? It shouldn’t be a surprise that a fairly simple song from the early 20th century would have some disputed origins; however it is surprising that somehow despite those dubious origins, the copyright holder has been able to maintain an iron grip on the use and performance of the song. Right now, the lawsuit is still working its way through the courts, due to the various technical complexities that are bound to arise when law meets art: various state claims are being separated from the federal claims, and arguments over whether the federal statutes preempt any state claims are being heard. As for the disputed facts of the case, the hook for you and me is that plaintiffs are offering up some interesting evidence that the song was in circulation prior to the registration of the copyright in 1935, using both the original music of “Good Morning To You” (from 1893) with the lyrics we all know, all the way back in 1911. This would pretty much destroy any claim of originality, a necessary requirement for copyright protection.
The thing to remember is that, “Happy Birthday” notwithstanding, the concept of “copyright” is good. We want to protect the works of artists, and allow them the ability to be fairly compensated for their work and protect against unauthorized distribution. Now, whether or not that means that the protection should extend 90 years (or whatever arbitrary number Congress decides when Disney lobbies again to protect the image of Mickey Mouse), or protect works that even giving the benefit of the doubt as “original”, that’s a different story. Maybe Colbert can do a bit on that.