An unhappy birthday and intellectual property laws

posted at 2:01 pm on June 16, 2013 by Jazz Shaw

You probably don’t give much thought to the ubiquitous song, “Happy Birthday” aside from the odd children’s party, but it’s going to have a day in court soon. The song has been around in various forms since the 1800′s, but the copyright on it is still held by a division of Warner Brothers, who charge a fee any time the ditty is used in a commercial endeavor. One documentary filmmaker claims that the rights to the song have long since expired and is trying to get it moved into the public domain.

The filmmaker, Jennifer Nelson, was producing a documentary movie, tentatively titled “Happy Birthday,” about the song, the lawsuit said. In one proposed scene, the song was to be performed.

But to use it in the film, she was told she would have to pay $1,500 and enter into a licensing agreement with Warner/Chappell, the publishing arm of the Warner Music Group. Ms. Nelson’s company, Good Morning to You Productions, paid the fee and entered into the agreement, the suit says.

“Before I began my filmmaking career,” Ms. Nelson said in an e-mail forwarded by her lawyer, “I never thought the song was owned by anyone. I thought it belonged to everyone.”

The lawsuit notes that in the late 1800s, two sisters, Mildred J. Hill and Patty Smith Hill, wrote a song with the same melody called “Good Morning to All.” The suit tracks that song’s evolution into the familiar birthday song, and its ownership over more than a century.

You’re to be forgiven if this sounds like something of a ho-hum, why do we care story, but it does touch on a much broader question. How long should copyrights on content like songs, books and video remain in force before they become public domain material? Over at Outside the Beltway, Doug tackles this question with a bit of historical perspective, where he points out that patents only last for 20 years, but the copyright on a song can extend for as much as 120 years.

That is precisely what’s wrong with our current system of IP law I would submit.The Founders gave Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Both from the text of the Constitution itself and the contemporary debates on the subject, it’s clear that the intention was that by granting inventors and artists a limited period of exclusivity for their works, it would encourage innovation in the sciences and arts. The fact that they intended this to be a limited period is confirmed by the fact that the earliest patent and copyright laws granted protection for what would today consider very short periods of time. The idea that the protections provided by patents and copyrights would last for a century or more likely never occurred to the men gathered in Philadelphia in 1787. More importantly, as copyright and patent laws have become more restrictive it’s become more and more doubtful that our Intellectual Property laws are acting in the public interest.

The constitutional reference here is found in the Patent and Copyright Clause (Article I, Section 8) which grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

What did the Founders have in mind when they chose the phrase, “for limited Times?” At the birth of the nation, it seems doubtful that more than twice the average life expectancy was what they intended. Otherwise they may as well have just made it “in perpetuity.” But we also don’t want to stifle creativity and innovation or rob inventors of the fruits of their labor. Should such things pass on to the estate of the owners for a century, though? It seems excessive.

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I live in this town and it’s well known the Happy Birthday song is the most expensive to license. So be it, that’s the owner’s right. But if you have a problem with copyright term limits, look no further than Disney, who lobbied hard to extend it. They are the most ferocious company at protecting their brand. Which may explain why every child in the world wants to go to Disneyland and Disneyworld.

John the Libertarian on June 16, 2013 at 2:11 PM

What’s worse is that current IP law perverts the grand bargain that underlies IP law in the first place — that you give up your creations to the general public good in return for temporary government assistance in policing your creation.

The alternative is trade secrets, where you have to zealously guard your creation forever yourself and have only limited recourse if it escapes.

The current system, with multiply-extended lifetimes, becomes more like a protection racket with lobbying money buying privilege — and the public good playing no part.

cthulhu on June 16, 2013 at 2:13 PM

50 years seems like a nice round number. Though that may be a little long.

lowandslow on June 16, 2013 at 2:16 PM

Not only has Congress extended the terms for copyright well beyond what could plausibly be considered “limited” by the Framers, they have also done so retroactively. I consider such laws to violate the Constitutional prohibition against ex post facto laws, and common sense: How can extending the term of a copyright on an existing work encourage the author to write what he has already written?

The Monster on June 16, 2013 at 2:25 PM

But we also don’t want to stifle creativity and innovation or rob inventors of the fruits of their labor.

Warner Brothers wasn’t the author, the creator, the innovator, or the inventor. In fact they didn’t even exist when the Happy Birthday song was adapted from previous tunes already in existence.

It’s a scam and is not related in any way to the original intent of patents or copyrights.

sharrukin on June 16, 2013 at 2:27 PM

What did the Founders have in mind when they chose the phrase, “for limited Times?” At the birth of the nation, it seems doubtful that more than twice the average life expectancy was what they intended. Otherwise they may as well have just made it “in perpetuity.” But we also don’t want to stifle creativity and innovation or rob inventors of the fruits of their labor. Should such things pass on to the estate of the owners for a century, though? It seems excessive

…no problem!…China and other countries have been stealing the fruits of their labor…for decades!

KOOLAID2 on June 16, 2013 at 2:30 PM

sharrukin on June 16, 2013 at 2:27 PM

I completely see what you’re saying, but all I was driving at there was if we were to change the current laws, I wouldn’t want to go so far in the other direction that it stifles innovation.

Jazz Shaw on June 16, 2013 at 2:31 PM

I completely see what you’re saying, but all I was driving at there was if we were to change the current laws, I wouldn’t want to go so far in the other direction that it stifles innovation.

Jazz Shaw on June 16, 2013 at 2:31 PM

I agree completely. There should be a period where the creator or those who paid him/her for the work can enjoy to haul in the profits. I just think it has gone well beyond sanity and has become more of a business income stream than anything that actually protects creativity. In this case a corporation is being paid a tax for something they had absolutely no role in creating and nothing is being protected here.

sharrukin on June 16, 2013 at 2:38 PM

The copyright – patent law disparity is an ongoing scandal in US politics. If a guy risk everything in creating and getting approved a new drug, he get 20 years of protection from being copied. If the same guy scribbles a song on a napkin, his ‘work’ is protected for 120 years or so. It is crazy.

NORUK on June 16, 2013 at 2:39 PM

But, that was such a long time ago…

socalcon on June 16, 2013 at 2:44 PM

How silly is it getting?

http://www.google.com/patents/US5965809

Method of bra size determination by direct measurement of the breast

US 5965809 A

Abstract

This relates to a method of direct measurement to determine cup size of the breast which includes band size measurement by initially measuring the user’s chest or torso circumference with a flexible tape measure immediately below the breasts followed by the step of adding five inches to the measured number and incorporating conventional rounding-off procedures. Next, cup size is determined by directly measuring with the tape the circumference of each unclothed breast from the beginning of the breast mound at one side laterally to the parasternal area medially. Next, a measurement conversion is made wherein a measurement of seven inches corresponds to an “A” size cup, eight inches a “B” size cup, nine inches a “C” cup, etc. Each one inch increment determines a cup size.

sharrukin on June 16, 2013 at 2:47 PM

Jazz Shaw on June 16, 2013 at 2:31 PM

…then why are you crying…in your picture?

KOOLAID2 on June 16, 2013 at 2:49 PM

Otherwise they may might as well have just made it “in perpetuity.”

Ed Morissey (God love him) does the same darned thing.

Tzetzes on June 16, 2013 at 2:57 PM

Anything over about 50 years is excessive. However, Europeans had this crazy idea about crazily long copyright terms, and in joining treaties with them, we adopted their term lengths. At least we require copyright claimants to register their copyrights before they can bring infringement suits.

Ira on June 16, 2013 at 2:58 PM

…no problem!…China and other countries have been stealing the fruits of their labor…for decades!

KOOLAID2 on June 16, 2013 at 2:30 PM

I’m very concerned about China and IP rights. You publish a book, 2 hours later it’s pirated and in print (and these days probably in a PDF format) in China. All the while we’re buying their products, they’re stealing our intellectual property. It sucks.

Paul-Cincy on June 16, 2013 at 3:02 PM

Well at least the Supreme Court said we have the right to our own DNA, wasn’t that some sort of ruling this week? I didn’t clink beyond the headline link I read somewhere online. It has been a crazy busy week for me.

O/T, need some help here. My carbonite subscription is expiring very soon. Overall, I have liked this service running in the background, and even used it to reload my computer when I finally upated to Windows 7, with no problems.

However, it still totally bugs me that they caved to the libs last year regarding that phoney issue with Rush and Sandra Fluke. So who all do you folks recommend for a backup service for a Windows based machine? Thanks in advance for any responses.

karenhasfreedom on June 16, 2013 at 3:03 PM

Microsoft

Founded 1975

http://arstechnica.com/business/2007/03/analysis-microsofts-software-patent-flip-flop/

A patent search reveals that Microsoft received its first patent in 1986. And that patent was not even related to software: it covered a “Holder for storing and supporting articles.” Microsoft’s first software patent was granted in 1988, and the company held only three software patents by its 15th anniversary in 1990. Microsoft seems to have had little trouble innovating during those years. Windows and Office, the products that have been Microsoft’s bread and butter ever since, were developed in the late 1980s.

Today, Microsoft has a war chest of over 6,000 patents and is on track to have ten thousand by the end of the decade.

Why?

Bill Gates…If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then they have a 17-year right to take as much of our profits as they want. The solution to this is patent exchanges with large companies and patenting as much as we can.

So Microsoft is taking out patents to protect against predatory patent filers who want in on inventions and free cash they had no role in creating.

Patents seem to be doing the exact opposite of what they are claimed to be doing.

sharrukin on June 16, 2013 at 3:03 PM

John the Libertarian nailed it in the first comment. They really ought to call our current IP law the Disney laws. The sun has almost set on Mickey and Minnie several times, and then surprise — up goes the length of copyright.

At the risk of sounding like a refugee from the Occupy movement, this is one of the biggest cases of our government happily sharing a bed with corporate giants.

S. Weasel on June 16, 2013 at 3:09 PM

Should such things pass on to the estate of the owners for a century, though? It seems excessive.

There is no way such a standard could be established, because when it comes to intellectual property, some of it is more equal than others. A song written by, say, Beethoven would have more “property value” than one written by, say, one of the Leftists here on Hot Gas.

Del Dolemonte on June 16, 2013 at 3:15 PM

O/T, need some help here. My carbonite subscription is expiring very soon. Overall, I have liked this service running in the background, and even used it to reload my computer when I finally upated to Windows 7, with no problems.

However, it still totally bugs me that they caved to the libs last year regarding that phoney issue with Rush and Sandra Fluke. So who all do you folks recommend for a backup service for a Windows based machine? Thanks in advance for any responses.

karenhasfreedom on June 16, 2013 at 3:03 PM

Rush has a new backup service advertiser, but I don’t recall its name at the moment.

Del Dolemonte on June 16, 2013 at 3:17 PM

Warner Brothers wasn’t the author, the creator, the innovator, or the inventor. In fact they didn’t even exist when the Happy Birthday song was adapted from previous tunes already in existence.

It’s a scam and is not related in any way to the original intent of patents or copyrights.

sharrukin on June 16, 2013 at 2:27 PM

Learn something new every day. I had no idea Warner Brothers somehow “owns” the license for “Happy Birthday.”

They shouldn’t and it should be in the public domain.

PatriotGal2257 on June 16, 2013 at 3:17 PM

They shouldn’t and it should be in the public domain.

PatriotGal2257 on June 16, 2013 at 3:17 PM

Agree.

The Great Gatsby is another one. Written in 1925 and it’s author F. Scott Fitzgerald died in 1940 and it is still under copyright. What inovation is that copyright protecting given that the author has been dead for 73 years?

sharrukin on June 16, 2013 at 3:26 PM

At the time of our Founding, there were no effective copyright or patent laws in the world. Much literature, for example, was privately published for patrons and subscribers only, no one else saw it. It was the only way an author could get paid besides selling his work in serial form to a magazine. Publish a book, and someone would immediately copy it and republish without giving you a dime (if it were any good).

So copyright is an incentive to produce and publish instead of keeping content closely held and private. Today’s nonsense of “lifetime plus 75 years” is a joke, a product of outright bribery by copyright holders.

Consider if you will: if you invest millions of dollars to research and test a life-saving drug, and years of FDA-supervised tests grant approval for your patent, your total protected time is 14 years, which starts at approval, not when you actually are able to begin producing or selling it.

Life-saving drug for which you spent millions and years: 14 years. Cartoon mouse: life + 75 years.

In what universe is that a benefit to society?

Adjoran on June 16, 2013 at 3:28 PM

Agree.

The Great Gatsby is another one. Written in 1925 and it’s author F. Scott Fitzgerald died in 1940 and it is still under copyright. What inovation is that copyright protecting given that the author has been dead for 73 years?

sharrukin on June 16, 2013 at 3:26 PM

Agree with you also, even though I read the book and disliked it. That’s probably why so few movies have been made from it, even though I have no interest in seeing either one (I remember us talking about the most recent film with Leonardo DiCaprio here).

PatriotGal2257 on June 16, 2013 at 3:33 PM

Agree with you also, even though I read the book and disliked it. That’s probably why so few movies have been made from it, even though I have no interest in seeing either one (I remember us talking about the most recent film with Leonardo DiCaprio here).

PatriotGal2257 on June 16, 2013 at 3:33 PM

I was never a big fan of it myself. The writing was decent but the subject just didn’t interest me.

It isn’t just The Great Gatsby though…

http://www.theatlantic.com/technology/archive/2012/03/the-missing-20th-century-how-copyright-protection-makes-books-vanish/255282/

Copyright Protection Makes Books Vanish

Because of the strange distortions of copyright protection, there are twice as many newly published books available on Amazon from 1850 as there are from 1950.

What’s so crazy is that there are just as many from the last decade as from the decade between 1910 and 1920. Why? Because beginning in 1923, most titles are copyrighted. Books from before 1923 tend to be in the public domain, and the result is that Amazon carries them — lots of them.

sharrukin on June 16, 2013 at 3:41 PM

Copyright Protection Makes Books Vanish

Because of the strange distortions of copyright protection, there are twice as many newly published books available on Amazon from 1850 as there are from 1950.

What’s so crazy is that there are just as many from the last decade as from the decade between 1910 and 1920. Why? Because beginning in 1923, most titles are copyrighted. Books from before 1923 tend to be in the public domain, and the result is that Amazon carries them — lots of them.

sharrukin on June 16, 2013 at 3:41 PM

And let us not forget: the whole idea of copyright wasn’t to put money in artists’ pockets, it was to get MORE material into the public domain.

Adjoran on June 16, 2013 at 4:14 PM

And let us not forget: the whole idea of copyright wasn’t to put money in artists’ pockets, it was to get MORE material into the public domain.

Adjoran on June 16, 2013 at 4:14 PM

Precisely and it is now doing the opposite. It is throttling innovation as bureaucrats and corporations jump on board the gravy train of free cash. A smaller entrepreneur isn’t going to be able to afford the ever present license fees that a larger corporations can pay out of the petty cash fund.

sharrukin on June 16, 2013 at 4:20 PM

sharrukin on June 16, 2013 at 3:41 PM

Thanks for the link. It’s really interesting. I guess I’m going to hold on to my little collection of fiction and non-fiction paperbacks from the 60s and 70s that I managed to find in thrift shops and secondhand book stores.

PatriotGal2257 on June 16, 2013 at 4:23 PM

sharrukin on June 16, 2013 at 2:47 PM

And the sizes are still all over the map.

Cindy Munford on June 16, 2013 at 4:30 PM

I guess I’m going to hold on to my little collection of fiction and non-fiction paperbacks from the 60s and 70s that I managed to find in thrift shops and secondhand book stores.

PatriotGal2257 on June 16, 2013 at 4:23 PM

I am the same way. Frequently I want to read a book that is no longer in print and often the only way to get it is to download a digital copy. I hadn’t realized why this was the case until now. I prefer real books because I like to read at night but many of them just cannot be found even at used book stores.

sharrukin on June 16, 2013 at 4:32 PM

sharrukin on June 16, 2013 at 2:47 PM

One of my favorite patents. I made a copy when issued. The claims are a hoot, and the best method disclosures very entertaining.

There are a lot more like that out there, and the really out-there proposed inventions are in a mine in Pennsylvania in the Abandoned Application files.

NaCly dog on June 16, 2013 at 5:11 PM

Guess I’ll be the lone one who thinks private property should be private property until the owner or his heirs say otherwise.

Ronnie on June 16, 2013 at 5:15 PM

One of my favorite patents. I made a copy when issued. The claims are a hoot, and the best method disclosures very entertaining.

NaCly dog on June 16, 2013 at 5:11 PM

They had a link to a patent for a method on how to exercis a cat using a laser pointer. I shudder to think at how many people are violating patent laws every day by not paying a licence fee when they play with kitty.

sharrukin on June 16, 2013 at 5:17 PM

But we also don’t want to stifle creativity and innovation or rob inventors of the fruits of their labor.

Not really. Stephen Foster was routinely ripped off by various publishers and he didn’t say the hell with it and quit writing songs.

Cyrus McCormick himself and after his death his company lost two patent infringement suits concerning the mechanical reaper. It was pretty obvious that the other company (John Manny’s) was guilty since it was known that McCormick invented that machine. What it came down to was how good the lawyers were at presenting their respective cases. McCormick’s company continued to produce them in spite of losing these lawsuits.

Our system has long been so corrupt that laws are fairly meaningless. It comes down to if you have the money, and have enough of it, and good enough lawyers to defend your interests.

Large corporations (like Disney) have also lobbied Congress to get copyright laws extended. “Starving artists” do not have this kind of pull, and these laws are not extended in order to protect them.

Guess I’ll be the lone one who thinks private property should be private property until the owner or his heirs say otherwise.

Ronnie on June 16, 2013 at 5:15 PM

I basically feel that way, too. However, what if, say, Mozart’s music was still copyrighted? His heirs are long gone. So should some third party be allowed to make money off his music 200 years after his death? That third party would not have taken any part in creating any of it.

You would be hard-pressed to invent any new machine that didn’t involve some older, patented technology or technologies. If every time an individual or corporation invented something and then had multiple interests (some for patents going back to the 19th century) coming out of the woodwork to sue them, then that is what would actually stifle creativity and progress.

Another thing is if you look at many things (in particular music) there’s a spike in sales and drops off after that point. If some song or invention is revitalized/repackaged and it spikes again, the owner of the rights could indeed sue if permission were not granted ahead of time. But then the issue becomes the fact that the second party caused that second spike…not the original or subsequent owning party.

When you put anything out into public, you have to expect to lose some degree of ownership of that be it your privacy or a work you have created.

In a nutshell, I think the royalties should be pro-rated over time and the percent of the original used in something new should be taken into account.

Dr. ZhivBlago on June 16, 2013 at 7:06 PM

However, what if, say, Mozart’s music was still copyrighted? His heirs are long gone. So should some third party be allowed to make money off his music 200 years after his death? That third party would not have taken any part in creating any of it.

Dr. ZhivBlago on June 16, 2013 at 7:06 PM

If he’s gone and no heir have rights to it, I don’t care if someone else makes money from it. At that point it’s public domain to me. K-Tel can put out a CD and Time Life can put out a CD and they can fight each other over profits and if another producer wants to burn some CDs they can water down the profits even more.

In a nutshell, I think the royalties should be pro-rated over time and the percent of the original used in something new should be taken into account.

Dr. ZhivBlago on June 16, 2013 at 7:06 PM

I think royalties should be exactly what the rights holder wants them to be. They do tend to decline on their own as it is anyway. No one’s paying full price for Don’t Worry, Be Happy any more.

Ronnie on June 16, 2013 at 7:44 PM

If you mess with “Tarzan”, the estate of Edgar Rice Burroughs will knock on your door.
Sure, it’s public domain, but that won’t stop the estate from suing you.

J_Crater on June 16, 2013 at 7:55 PM

If you mess with “Tarzan”, the estate of Edgar Rice Burroughs will knock on your door.
Sure, it’s public domain, but that won’t stop the estate from suing you.

J_Crater on June 16, 2013 at 7:55 PM

All of ERB’s books, Tarzan, Pellucidar, Barsoom are available to download free from multiple sources. What do they sue over?

Oldnuke on June 16, 2013 at 8:04 PM

If you mess with “Tarzan”, the estate of Edgar Rice Burroughs will knock on your door.
Sure, it’s public domain, but that won’t stop the estate from suing you.

J_Crater on June 16, 2013 at 7:55 PM

Because the name TARZAN is trademarked, which changes things.

Trademarks are renewable.

profitsbeard on June 16, 2013 at 8:06 PM

All of ERB’s books, Tarzan, Pellucidar, Barsoom are available to download free from multiple sources. What do they sue over?

Oldnuke on June 16, 2013 at 8:04 PM

Depends if you just grab a copy or if you’re actually sharing.

The former will get you a “naughty, naughty boy” letter/email if you’re careless. (experience speaking) The latter will get you much worse.

Here’s why: there are literally not enough hours in the day to go after everyone who grabs a copy even if lawyers and money grew on trees. Going after the seeders is literally the only option unless you’re talking security leaks and make the grabbers disappear. (this has happened occasionally…all I’m gonna say is be very very VERY careful what you download if it’s politically/legally sensitive to the powers-that-be)

MelonCollie on June 16, 2013 at 10:57 PM

Interesting seeing this since my birthday was just this past Saturday.

I always noticed on TV shows, when one of the characters was celebrating a birthday, they always sung “For He’s A Jolly Good Fellow”. It drove me nuts! Now I kind of understand why they did that .

cableguy615 on June 17, 2013 at 6:08 AM

This is also why many restaurants came up with different “happy birthday” songs. A restaurant being a “commercial endeavor” they did not want to have to pay this royalty, which WB was threatening them with.

The worst part of it though is that this is a song that no group of people that I know of can sing it in tune.

UnrepentantCurmudgeon on June 17, 2013 at 10:37 AM

Agree with you also, even though I read the book and disliked it. That’s probably why so few movies have been made from it, even though I have no interest in seeing either one (I remember us talking about the most recent film with Leonardo DiCaprio here).

“Gatsby” is an impossible book to make a movie from. It is part meditation on excess and illusionary wealth and part caricature, populated as it is with unreal archetypes and rife with stilted dialogue. Redford did pretty well as Gatsby, mostly because Gatsby himself is vapor and Redford plays vaporous to a “T” in everything he does. One thing I know for certain, there was no rap or hip-hop in the Roaring 20s.

UnrepentantCurmudgeon on June 17, 2013 at 10:44 AM