Happy Birthday To Everybody: Victory For The Public Domain (With An Asterisk)

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Happy Birthday To Everybody: Victory For The Public Domain (With An Asterisk)

People should sing "Happy Birthday" to their heart's content. But for works that are less high-profile than "Happy Birthday," the cloud of uncertainty around such transfers might be enough to keep people from lawfully enjoying our common cultural heritage in the public domain. (Photo: CJ Sorg/flickr/cc)

It’s now (probably) legal to publicly sing the world's most popular song, thanks to an opinion handed down this week by a federal judge in Los Angeles. After years of litigation, the court held that the lyrics1 of "Happy Birthday To You" are not restricted by Warner/Chappell's copyright, handing a solid victory to a group of filmmakers producing a documentary about the song, not to mention the general public.

 

We’re glad about the ruling, but we can’t help noting that the case casts some of the deeper problems with our copyright system into stark contrast. For one thing, copyright terms are way, way, way too long.

 

Copyright Terms Are Way, Way, Way Too Long

 

There is no rational reason why anyone should be restricted from using lyrics written 120 years ago.

 

And yet, our painfully long copyright terms enable exactly that.

 

In this case, the effects of hyper-extended terms were significant for the litigants as well as the public. Remember, this was the case that seemed to turn on exciting last-minute "smoking gun" evidence—in the form of a book from 1927. When litigants need to cite evidence that ancient, there's a real problem. And what if there hadn't been a team of impressive law librarians able to dig up that yellowed text?

 

Warner/Chappell actually faced a similar problem, because the Copyright Office no longer has a copy of the original registration upon which Warner relied. Instead, the company had to trek across the pond to the British Museum, which held on to it this whole time.

 

Given that term lengths are set by policy, it should ring alarm bells if litigants have to dig in actual museums and rely on ancient records to settle copyright disputes. Those alarm bells might be quieted if we had any evidence that those long terms actually helped promote the progress of science and useful arts—but the preponderance of evidence points the other way.

 

The Deck Is Stacked Against The Public Interest

 

This case points to another problem: it’s too easy for concentrated copyright interests, even invalid ones, to beat back the diffuse public interest. Thanks to those ridiculous term lengths, exacerbated by loosened requirements on notice and registration, it can be difficult or impossible to identify the owner of a copyright associated with a work. There’s also the crushing weight of outsized statutory damages hanging over anybody accused of infringement. And if you can’t afford to hire a lawyer, it’s difficult to hold folks who are abusing the system accountable.

 

The history of royalty payments on Happy Birthday illustrates that dynamic—concentrated interests trump diffuse ones. By some estimates, Warner/Chappell was collecting $2 million a year on these payments. But because it charged each user much less than the cost of litigating, nobody brought suit—not for what we can now say is eight decades of improper copyright claims.

 

So: Is It Public Domain?

 

Lots of early reports have trumpeted the news that, after this opinion, the song is now officially in the public domain. That is very nearly true, but even that nice thing is spoiled by our profound orphan works problem.

 

This court ruled that Warner/Chappell has no legitimate copyright interest in the lyrics—and in fact, that every party claiming a copyright in the lyrics in the eight decades since one particular agreement has been mistaken. But if Warner/Chappell has no copyright, does that mean nobody does?

 

As a practical matter, the answer is probably yes. If anybody else had a likely claim to the copyright, they would have stepped forward long ago, and not sat idly by while Warner/Chappell was collecting millions in royalties.

 

Still, the inherent difficulty of dealing with records that date back a century means that it is difficult or impossible to conclusively say who transferred what. People should sing "Happy Birthday" to their heart's content. But for works that are less high-profile than "Happy Birthday," the cloud of uncertainty around such transfers might be enough to keep people from lawfully enjoying our common cultural heritage in the public domain. That's a sad outcome, and one that we should work to avoid—by seeking more reasonable copyright terms, encouraging the Copyright Office to practice better librarianship around records, and generally tackling the orphan works problem.

 

So, let’s cheer a great win for our common culture—but not forget that we still need to fix our broken copyright system.

Parker Higgins

Parker Higgins is an activist at the Electronic Frontier Foundation, specializing in issues at the intersection of freedom of speech and copyright, trademark, and patent law.

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