Law

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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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.

Feats of Strength: OutKast

If my Facebook feed is any indication, we’re in the middle of wedding season right now; if you’re of a certain age, it seems like every week brings news of one friend or another getting married.  In fact, I was just at a friend’s wedding a few weeks ago, and because I’m always working, I found inspiration for an article on the dance floor.  In the past decade, “Hey Ya” has become an unofficial wedding staple; in fact, I believe in most states it is now the law that the couple is not officially wed until the DJ plays the song.

What is it that makes “Hey Ya” such a universally beloved song, crossing over beyond traditional hip-hop and pop audiences into rock radio, and now onto the wedding dancefloor where grandma and grandpa are throwing it down?  The answer is in the very basic structure of the song itself, with OutKast putting an ingenious twist on an old songwriting standard.  The chords to the song are among the first that any musician learns, (G, C, D, and E minor), and they’re played in a common progression (I, IV, V, and vi).  Throughout the whole song, none of this varies; it sounds universal, because it’s based on a music tradition we’ve had ingrained for years.

The subtle trick to the song is a slight modification to the rhythm of the progression.  Instead of giving each chord the same amount of beats, OutKast stretches out the number of measures for one chord, then shortens the measure for the next chord.  The first modification gives a natural tension to the progression, because the listener is conditioned to expect the next chord to come in earlier; the second alteration resolves it quickly, but does it in a way that pushes the listener into the next phrase.  So, “Hey Ya” begins with four beats of the G chord, eight beats of the C chord, two beats of the D chord, and then four beats or the E minor chord.  The eight beats creates tension, the two releases it, but pushes the phrase forward.  Because of the uneven distribution, the short D chord measure acts as a pickup into the E minor; the E minor works as a resolution, because it’s the relative of the G, the key in which the song is written.

The result is that the listener gets the benefit of both the expected and the unexpected; there is appreciation for the familiarity, but there is enough distinction that OutKast can maintain the listener’s attention throughout the song.  And it’s on top of this base that OutKast can add other touches that augment this feeling, from the traditional drumbeat to the funky bass that emphasizes those downbeats.  Throw in some goofy keyboard leas and some backing vocals, and you’ve got yourself a hit.

What’s interesting is that the structure of the song also gives clues to the lyrical sentiment as well–contrary to first impressions, this isn’t really all that happy of a song.  Each phrase ends on a minor key, which sounds “darker” and “sadder” in contrast to the preceding major keys; it mirrors the tone of lines like “Thank God for mom and dad for sticking through together, cause we don’t know how” and “If what they say is ‘nothing is forever’, then what makes love the exception?  So why oh why are so in denial when we know we’re not happy here?”  But we’re so focused on the initial happiness, that we tend not to pay attention to the end of each line.

Then again, maybe we just like singing “Hey Ya”, informing the populace what’s cooler than being cool, and shaking it like a Polaroid picture.

Catching Up On The Week (Mar. 21 Edition)

We don’t have any real #longreads for you to scroll through this weekend, but there are a lot of shorter interesting articles that are worth your time.  That’s probably a good thing, because I imagine a lot of people will be focused on the NCAA Tournament this weekend; then again, if you were looking for us a source of distraction, we’re sorry.

First, for the music theory enthusiasts out there, Slate did a piece on one man’s quest to determine the time signature of the theme from The Terminator.  If you’re unfamiliar with the concept of a time signature in music, there’s a quick explanation in the article, so don’t worry.  For the record, my initial guess was 10/8.

Not The Terminator, but frightening nonetheless

Not The Terminator, but frightening nonetheless

I was glad to see that one of the conditions of the settlement between GoldieBlox and the Beastie Boys was a public apology by GoldieBlox.  If the case had gone to litigation, there was a potentially an intriguing fight over how parody in certain contexts should be handled under Fair Use.  Complicating matters for GoldieBlox was the fact that they were using the parody for other commercial purposes.  After all this, I hope everyone learned this lesson: always ask permission, and make sure you get the proper license.

There have been discussions recently on the issue of audio quality and the way that digital technology from both the musician’s and consumer’s perspective has had a significant effect on recording (See “Pono”), this article takes a look at how musicians have attempted to push for greater rights and use of live musicians instead of samples.  The piece makes good points about how difficult it is to actually replicate live sounds, and how musicians (especially string players) are often screwed when it comes to compensation.  However, the article fails to account how some artists take advantage of the more mechanized sound and use it to their advantage (See the entire career of Kraftwerk).  I appreciate their intentions, but it’s not the only pathway.

On a similar note, here’s some more disappointing news for musicians: Late Night with Seth Meyers is booking fewer musical guests than the show did under Jimmy Fallon.  Billboard reports that this is by design, as the show believes that Meyers has other strengths.  Say what you will about Fallon’s ability as a late night host (and believe me, I have), I always appreciated that he would often book underground acts and give them exposure, like Titus Andronicus or Parquet Courts.  Hell, Refused even played Fallon’s show.  Hopefully Fallon will do some similar booking with The Tonight Show in the future.

Record Store Day is coming up in a month, and there are several cool releases to look forward to picking up this year.  But while RSD has provided a lot of good exposure to independent stores in the past few years and have provided a lot of foot traffic, this article explains that the type of product being offered often languishes on the shelves and other such factors mean that the “holiday” may actually hurt several stores.

CNN continues to show that they have little idea about how to do anything right.  Deadspin has a piece on how they used an absolutely awful lede in a story about Kurt Cobain.  The original article has since been altered, but the Deadspin staff had fun in coming up with their own versions of other possibly awful openers that CNN could have opted to use.

Finally, here’s a pleasant song for your weekend: Real Estate recently did a live cover of Neil Young’s “Only Love Can Break Your Heart”, and Pitchfork has the video.  It’s one of my favorite songs, and I appreciate the spirit of the cover.

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.

Catching Up On The Week With Special Guest Copyright Law (Feb. 28 Edition)

A few quick links you may have missed this week and worthy of your time this weekend

I’m always interested in the intersection of music and the law, and considering I spent three years and a fortune for the privilege of receiving a sheet of paper that says “Juris Doctor”, I would hope that there would be at least one thing from my chosen profession that I should enjoy.  So I was excited to read an article discussing yet another lawsuit over sampling, with this one concerning Frank Ocean’s “Super Rich Kids”, and not only because I’m a fan of the song.

Most sampling lawsuits concern an area of copyright law known as “fair use”, which allows certain reproductions that otherwise might be considered infringements in certain limited circumstances, using a balancing test of four factors.  Discussions about fair use are one of the more entertaining parts of copyright law, but unfortunately for most participants there have been several areas that haven’t been settled.  One concept that is still being debated is what is considered “transformative”, which addresses the “purpose and character of the use” component.  Changing the pitch or adding distortion can often be a huge change to a piece of music, so I would be more liberal in my assessment of the transformative question.  In addition, the article mentions a new proposed system that would seek to prevent the hassle of most of these lawsuits by instituting a compulsory licence system.  I’ll definitely spend some time this weekend reading up on that suggestion.

There was recently another development in the area of “fair use”, where an Australian company reached a settlement with a Harvard Law professor who used a clip from Phoenix’s “Lisztomania” for a lesson on on “fair use” posted on YouTube.  It seems to have been a clear attempt at steamrolling potential violators by the label holding the copyright, because the purpose was clearly educational and would be determined to be “fair use” by a court.  The label admitted as much, and thankfully also paid the professor’s legal fees (though I am generally loath to cheer on anything from that particular institution, I am glad for this particular result).

Just your neighborhood studio

Just your neighborhood studio

In a little bit of news, Stereogum has a look at the recording process behind the new Mastodon album.  Glad to see that it’s been smooth sailing for one of the most original bands in the metal scene today.

I know readers of this site are probably a bit Beck’ed out at this point, but if for some reason that’s not the case, SPIN has put online their cover feature from 1994 after the release of Mellow Gold.

I normally wouldn’t link to anything featuring Bill O’Reilly, but if you want to see a clueless argument against rap music, he’s a good source to follow.

Consider this quote:

O’Reilly argued it’s a problem when young black boys idolize “these guys with the hats on backwards” and “terrible rap lyrics” and drug use, and told Jarrett Obama has the power to “reverse the peer pressure.”

If you omit the word “rap”, Bill just provided a description of popular music from the last 50 years.  Congratulations Bill, glad to see you’re putting that Harvard degree to good use.

Finally, I’ve got a little bit of reading of my own to do this weekend.  There’s a Stereogum feature that goes in-depth into the My Morning Jacket “One Big Holiday” festival, and “extensive” doesn’t begin to describe it.  It’s been an open tab for nearly a week now, and considering how much of a fan of the band I am, I still intend to read it.  I’ll probably do so while downloading the shows from the festival.