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.

Tags: copyright