Copyright

The “Happy Birthday” Copyright: An Update

Last year we published a piece discussing the controversy behind the copyright claim to the song “Happy Birthday”, and included a brief rundown on some of the legal claims cited in the lawsuit challenging the copyright itself.  This week, a federal judge ruled in favor of the plaintiffs, in an opinion finding that the publisher Warner/Chappell Music Inc. did not have a valid claim to the lyrics of “Happy Birthday”.  Though one could find news of the result of the ruling from numerous outlets, it was difficult to track down a copy of Judge King’s opinion so we could analyze the opinion ourselves.   Eventually, we were able to locate a copy thanks to the Los Angeles Times, and the very least we could do is share their upload or Rupa Marya v. Warner/Chappell Music, Inc. with our readers.

It is important to note the distinction between the melody and the lyrics, and the different copyrights that are attributed to each element; this point is discussed on page 10 of the opinion, with the court noting that at this point it is the copyright on the lyrics that are in dispute.  The song that we all know as “Happy Birthday” uses the same melody as a song that sisters Mildred and Patty Hill had previously written, “Good Morning to All”, with a new set of lyrics substituted in their place.  The opinion provides the timeline of how the two songs were intertwined, and the convoluted history is why determining the origins of the copyright has been so difficult.

The rest of the opinion goes into deeper detail about the facts specific to this case and the precise legal standards involved, and their relative importance to you may vary.  But the case should serve as a reminder to the public about the importance of owning the compositional copyright.  Every song has two copyrights–one copyright for the composition (what is written), and one copyright for the performance (what is heard)–and it is the compositional copyright that is the money-maker.  That is the copyright which generates the most royalties, including the mechanical royalty that kicks in for covers, as well as the royalties from public performances (live performance and digital transmission).  Now you can see why “Happy Birthday” could be a great source of revenue for a company.

The saga of “Happy Birthday” is not over just yet, as many loose ends remain.  However, it became much harder for someone to make a claim on the next public performance you hear of that song.

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The Strange Intersection of Musicians and Politicians

We have a strange political system here in America, where we have managed to turn elections into multi-year affairs.  A lot of this is the fault of the media and especially 24-hour cable news networks, which have to find something with which to fill their airtime, and incisive policy discussion ain’t gonna cut it.  As a result, we end up with breathless coverage of every single appearance that a “candidate” may make, followed by countless pieces which attempt to either present us with straight-up bullshit or worse, find a unique bullshit angle to discuss the bullshit.  No, I am not a cynic.

One such example is this recent piece published in the New Republic concerning music played at political rallies.  There have been several instances over the years where artists have asked candidates to refrain from playing their music, with several providing cease-and-desist orders and threatening other legal action.  The author of this particular piece pleads with these musicians to stop engaging in this practice, and in the name of bipartisanship allow their music to be played without regard to the candidate’s politics.

To this I say: Fuck no.

The author makes a very simple mistake in his argument, and that is to confuse a candidate’s personal taste with his or her professional work.  Simply put, when music is played at a rally, there is an implicit connection made in the minds of the audience between the artist and the candidate.  This is not unintentional–the music is selected to convey a particular message, so there is definitely a level of forethought to the presentation that exists beyond “the candidate likes this song.”  And just as it is the case in film and television, an artist has the right not to associate his or her work with a candidate.  Few would argue that an artist must comply with a filmmaker’s demand or an advertiser’s wishes to include a particular song, so why would one assume that a politician should be able to use a song without regard to the wishes of the artist?  That is part of the protections offered by copyright, and a musician should certainly be able to defend that right.

Squishy notions of bipartisanship should not play a part in the decision at all; it may be that the vast majority of examples of refusals may be against Republican candidates, but an individual musician is under no obligation to make up for the gap when their politics are entirely diametrical.  Survivor had every right to be pissed when their megahit “Eye of the Tiger” was used as the soundtrack to the recent rally for Kim Davis–they would much rather have their song associated with the triumph of Rocky instead of affirming the beliefs of a bigot.  If it means that more conservative candidates have to lean on country cliches, that says more about the current sad state of the genre than anything else.

The editorial was on the right track when it discussed the intrusion into the personal lives of candidates; Springsteen does come off as a dick in his interactions with Chris Christie.  If the candidate can separate personal and professional lives in meeting with a hero, the artist should be able to do the same.  I have no doubt in the sincerity of various politicians when they profess their love of certain bands–even though Paul Ryan’s budgets make it seem like he has never listened to a word that Rage Against The Machine has said, he would not be alone in ignoring the content of their message.

Oh, and just because Neil Young wrote “Rockin’ in the Free World” as a protest against the policies of President George H.W. Bush, that does not mean Young should allow it to be used by a competitor against Bush’s son.  Everything that Young said about Bush goes ten-fold against Mr. Trump.

Catching Up On The Week (July 31 Edition)

Some #longreads as we enter the most boring month on the calendar…

We have entered the dog days of summer, and as such this invites commentary and features discussing the fabled “song of the summer.”  Contrary to what you may think, the “song of the summer” is not a recent phenomenon, and Vox discusses the surprisingly long history of the term.

Here is a great interview with Conrad Keely of …And You Will Know Us By The Trail of Dead done by the Australian website The Music that discusses the band’s surprisingly long history and the friendship at the center of the group that has endured over the years.

The Guardian sits down for an interview with all four members of Blur as they return to Hong Kong, the inspiration for their comeback album The Magic Whip.  In addition to learning the details on how the band’s dynamic has changed over the years and the specific influence of Honk Kong on the record, be on the lookout for a fun anecdote involving shenanigans with Lou Barlow (though he is not mentioned by name). [Ed. Note: The timeline of the story seems to indicate that these shenanigans took place after Lou Barlow left the band, so “Dinosaur Jr. bassist” seems to be an apt description]

We recently reviewed Vaadat Charigim’s new album Sinking as a Stone, and maybe we should have read this interview with CMJ beforehand, as they make sure to distinguish themselves from other groups given the “shoegaze” label.

The AV Club ruminates on the nature of the mp3 as a medium, as the listening public shifts towards streaming.

And finally, following up on one of our earliest pieces, the New York Times is reporting new evidence in the fight against the “Happy Birthday” copyright.  Don’t worry, there is hardly any legal jargon involved.

Catching Up On The Week (Mar. 13 Edition)

Some #longreads as you make plans for Friday the 13th, “Pi Day”, and the Ides of March…

Multiple sites are celebrating the 20th anniversary of the release of Radiohead’s classic album The Bends, ranging from Consequence of Sound’s track-by-track remembrance to Stereogum’s full-fledged “Radiohead Week”.  In addition to their usual anniversary post, Stereogum also has a great interview with Radiohead drummer Philip Selway in which he provides insight into the recording of The Bends.  The best feature though may be their discussion with a wide range of musicians about their all-time favorite Radiohead song.  A lot of the choices and explanations are illuminating, but I have to say that I was a little disappointed that my personal favorite was not selected.

“Street Spirit (fade out)” is a hauntingly beautiful song, and in my mind is the best song in Radiohead’s extensive catalog–after that, it’s about a thirty-way tie for second place.  If you break it down to its basic musical components, it has a fairly uncomplicated structure: it’s just a gorgeous descending guitar melody built atop a simple three chord progression, with Thom Yorke’s voice wrapping itself around the music in a way that is alternately sad and hopeful.  This is pure speculation on my part, but I believe that a key factor that contributed to its melancholic quality is the fact that the guitars were tuned about 15 cents flat, which gave a slightly unsettling feel to the arpeggiated riff and helped open up the tone of the guitar.  And “Street Spirit” had a fantastic Jonathan Glazer-directed video to boot.

The other big news this week was a jury reaching a verdict in the “Blurred Lines” copyright trial, with the jury finding in favor of the Gaye estate that there was infringement.  We may discuss the potential ramifications of the decision in detail at a later date, but in the meantime you can read about the possible unintended consequences of the decision from Deadspin and SPIN.  Simply put, the fact that most people in the media has turned on Robin Thicke does not mean that infringement occurred, and it could have a potential chilling effect on future music.

Finally, for some lighter fare, you have a couple of options.  Earlier this week we had a piece on Viet Cong, and now you might want to read an interview the band conducted with SPIN, even if it doesn’t touch on the name issue.  And you can top it off with the AV Club explaining why you should listen to the gorgeous a capella TV on the Radio song “Ambulance”, followed by actually listening to the song.

Catching Up On The Week (Feb. 20 Edition)

Some #longreads as you finalize your Oscar predictions…

Fans of Joy Division are probably well-aware that the famous illustration that graced the cover of their landmark album Unknown Pleasures was a graphic of radio waves from a pulsar taken from an old encyclopedia.  However, they are probably not familiar with the origins of the graphic itself.  Scientific American takes a look at the fascinating backstory behind the creation of what would eventually become one of the most famous images in music.

Earlier this week we published our review of I Love You, Honeybear, the brilliant new album from Father John Misty, and for those of you are interested now more than ever about the exploits of the man known as Joshua Tillman, check out the profiles on him by Rolling Stone and Consequence of Sound.

Consequence of Sound also takes a look at the trio BADBADNOTGOOD and how they ended up working with the likes of Ghostface Killah, and while you read it you can take a listen to their album Sour Soul, which is now available for streaming on SoundCloud.  The site also catches up with Elvis Perkins and fills us in on what he’s been doing in the years since 2009’s Elvis Perkins in Dearland as he prepares to release I Aubade next week.  Elsewhere, Pitchfork has an extensive interview with Sufjan Stevens available for your perusal this weekend.

If there’s a band that knows their way around cheap beer, it’s Red Fang, and Portland’s favorite heavy metal band recently persevered through a challenge from Denver’s Westword to rate some of the cheapest beer they could find.  Be sure to use that as inspiration for this weekend.

Ratter provides a great explanation of the copyright lawsuit over “Blurred Lines” between Marvin Gaye’s estate and Pharrell/Robin Thicke that is still making its way through the courts, including discussing exactly what parts of a song are copyrightable and how that can potentially affect the music industry.  You can even hear the musical excerpts from each side’s submissions to the court.

And finally, before watching the Oscars this weekend, be sure to read this New Yorker profile on the career and legacy of Glen Campbell, whose haunting “I’m Not Gonna Miss You” is up for Best Song.  We’re pulling for him to take home the statue, but we think it may be a longshot.

Catching Up On The Week (Feb. 6 Edition)

Some #longreads for the moments you refrain from laughter due to serious newscasters using the phrase “Pineapple Express”

We’re really excited for the release next week of Father John Misty’s new album, I Love You Honeybear–his debut, Fear Fun, was a pleasant surprise and the man put on one entertaining live show.  To help prepare you for the new record, be sure to read the profiles on Josh Tillman on Grantland and Pitchfork.

There are few reasons to care about the Grammys no matter what year it is, but the fact that Beck’s Morning Phase was nominated for Album of the Year and as a result will perform with Chris Martin on Sunday’s telecast might spur us to watch.  However, the awards did provide the L.A. Times with the opportunity to talk to Beck and discuss how he feels now that he’s no longer the young buck but an elder statesman for these shows.

If you’ve ever listened to a Sub Pop album from its early days, chances are you listened to an album recorded by Jack Endino.  He was the man behind the boards for a number of the heavyweights of the grunge era, and has continued to record numerous awesome indie bands since then.  Noisey caught up with the former Skin Yard drummer for an interview.

Everybody has been talking about the recent leak of the settlement between Sam Smith and Tom Petty over the similarities between “Stay With Me” and “Won’t Back Down”, and that prompted the AV Club to take a look at other instances of musical “borrowing.”  The first part of the Inventory was released today, so be sure to check on Monday for a few more examples.

And finally, if you still find yourself with some free time this weekend, check out the Albums That Never Were blog, which has painstakingly recreated some of the most famous “lost albums” of all-time, all with meticulous notes about their composition.

The Curious Case of the Happy Birthday Copyright

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.

Somebody messed with the copyright.

Somebody messed with the copyright.

(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.