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.
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.
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.
(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.