Warner Music Reprising The Role Of The Evil Slayer Of The Public Domain, Fights Back Against Happy Birthday Lawsuit

from the there's-a-movie-plot-in-here-somewhere dept

Earlier this year, we wrote about an interesting lawsuit filed against Warner/Chappell Music, claiming that the song Happy Birthday is in the public domain, and Warner owes millions in fraudulently collected licenses. As you may or may not know, Warner has some rather dubious claims over the copyright to the song, and despite pretty thorough research showing that the song is almost certainly in the public domain, it's also the most profitable song in history, earning millions of dollars every year for Warner. So with this class action lawsuit filed against it, you didn't think that Warner was going to give up easily, did you?

Of course its initial response ignores pretty much all of the evidence concerning why there is no actual copyright on the song, but instead focuses on some technicalities to try to dismiss most of the non-copyright claims and then limit the potential liability by arguing that the statute of limitations only goes back three years. It does promise to have a more complete response to the rather compelling evidence that the entire copyright is completely bogus. However, it seems that even the arguments it's making to limit the lawsuit here are suspect. Oddly, Warner appears to be flipping the usual arguments on their head. Copyright preemption and the statute of limitations generally are used when it comes to infringement claims, rather than totally bogus claims of holding a copyright there is no copyright on (i.e., copyfraud). As such, it seems there's a decent argument that Warner's arguments shouldn't apply here. Preemption is built around the idea that federal copyright law preempts any attempt to do end runs around federal law by throwing in some questionable state copyright claims. But that's not the situation here. Here, the state claims are not about state copyright claims, but rather things like fraud and unfair competition that come about due to flat out lying about holding a copyright for something that's in the public domain. That's not trying to "preempt" federal copyright law, but rather to argue that lying about holding a copyright and shaking down all sorts of people for singing Happy Birthday is a form of fraud.

As for the statute of limitations claim, again the statute of limitations is generally focused on the time frame of some infringement, rather than the timeframe of non-infringement which people only later discovered was licensed under fraudulent claims of potential infringement. Also, the case law on statute of limitations claims in copyright is a complete mess at times, and it sometimes depends on when the plaintiff discovered the violation. So, while Warner may be able to knock out a few minor issues with this stance, it's certainly not a slam dunk, and they're still facing the main issue, which is the overwhelming and somewhat damning evidence that their entire claim to holding the copyright is a complete and total sham -- a sham used to shakedown films, TV programs, restaurants and venues for millions of dollars.

And, of course, there's just the general sentiment of the public, who seem to recognize, implicitly, that claiming a copyright on a song as simple and iconic as Happy Birthday (which has been around for well over a century, long after any copyright should be expired) is somewhere up there on the scale of evil with kicking kittens for sport.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Ben (profile), Sep 4th, 2013 @ 12:04pm

    Kittens?

    I don't understand. What's wrong with kicking kittens? When did it become a sport? Or is the "evilness" the fact that someone made it a sport?

     

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  2.  
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    crade (profile), Sep 4th, 2013 @ 12:30pm

    Well, we can hope for people finally being legally allowed to sing Happy Birthday. I'd bet dollars to donuts we get nothing to help prevent this sort of abuse in general though.

     

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  3.  
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    someofthat, Sep 4th, 2013 @ 12:36pm

    We wish you a happy birthday!

    May their cake be laden with 10 million candles and their oxygen tank flowing for the breath. Now BLOW!

     

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  4.  
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    Michael, Sep 4th, 2013 @ 12:40pm

    You have to love the audacity of lawyers when you find these two statements in the same filing:


    The incredibly short time between requesting a license and turning around the suing shows that Plaintiff Rupa took a license not in reliance on anything Warner/Chappell said or did, but rather in order to manufacture a claim of liability

    Declaratory judgement claims based on the Copyright Act, like those alleged in Plaintiffs' first and second claims for relief, SAC I, 146-72, are subject to the Copyright Act's three-year statute of limitations

     

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  5.  
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    Anonymous Coward, Sep 4th, 2013 @ 12:43pm

    Kicking kittens is a sport? Who knew?

    So can we get the Olympic revision going so we can enter Warner Music as the Dream Team?

     

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  6.  
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    Oblate (profile), Sep 4th, 2013 @ 12:44pm

    Re: Kittens?

    It's evil because the MPAA has a patent on it (as a business method) and unless you are licensed to use it you are STEALING from them! Thief! They will find you (or someone else in your IP block) and make you (or them) pay!

    Note that they also have a separate patent on kicking kittens on the internet (emphasis theirs).

     

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  7. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Sep 4th, 2013 @ 12:45pm

    However, it seems that even the arguments it's making to limit the lawsuit here are suspect. Oddly, Warner appears to be flipping the usual arguments on their head. Copyright preemption and the statute of limitations generally are used when it comes to infringement claims, rather than totally bogus claims of holding a copyright there is no copyright on (i.e., copyfraud).

    Internet lawyer wannabe fail. Preemption applies because the state law claims all turn on whether the defendant holds a valid copyright. There's no extra element that makes the claims qualitatively different such that they are not preempted. The three-year statute of limitations applies since all civil actions under the Copyright Act have that three-year statute of limitation. It doesn't matter if it's an action for infringement or an action for declaratory judgment such as this.

    Preemption is built around the idea that federal copyright law preempts any attempt to do end runs around federal law by throwing in some questionable state copyright claims. But that's not the situation here. Here, the state claims are not about state copyright claims, but rather things like fraud and unfair competition that come about due to flat out lying about holding a copyright for something that's in the public domain. That's not trying to "preempt" federal copyright law, but rather to argue that lying about holding a copyright and shaking down all sorts of people for singing Happy Birthday is a form of fraud.

    Again, all of the claims of "fraud" are really copyright claims at bottom. What exactly are the extra elements that make the claims not preempted? I'd love to know. The memorandum cites many cases where such state law claims were preempted. You should read some of them.

    As for the statute of limitations claim, again the statute of limitations is generally focused on the time frame of some infringement, rather than the timeframe of non-infringement which people only later discovered was licensed under fraudulent claims of potential infringement.

    Nope. The statute of limitations kicks in from the moment the claim accrued. The claim doesn't have to be one for infringement, as is demonstrated by this very case. Look at the claims, and then determine when they accrued. Whether the claims are for infringement or something else doesn't matter.

    And, of course, there's just the general sentiment of the public, who seem to recognize, implicitly, that claiming a copyright on a song as simple and iconic as Happy Birthday (which has been around for well over a century, long after any copyright should be expired) is somewhere up there on the scale of evil with kicking kittens for sport.

    LOL! It's evil like kicking cats to assert their rights? I don't see it. Sorry, Pirate Mike, you fail again.

     

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  8.  
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    Anonymous Coward, Sep 4th, 2013 @ 12:49pm

    Re:

    Got any cites for that, aside from the memo?

    Genuinely curious.

     

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    eaving (profile), Sep 4th, 2013 @ 12:58pm

    Kickin Kittens

    Kicking kittens is only evil as a sport. If you are simply doing it gleefully then obviously, no harm, no foul. But when you start keeping score? Simply wrong and if you don't understand that it just goes to show how wrong you are.

     

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  10.  
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    Anonymous Coward, Sep 4th, 2013 @ 1:02pm

    Re:

    "Manufacture a claim". Now they have a casus belli?
    It seems Warner are going to claim all the evidence as fraudulently manufactured lies. Somehow that seems a little to the ambitious side.
    Somehow I picture this case getting really nasty, very fast when Warner adds the rest of their defence. We are not dealing in pure facts here. Emotions are getting put into this.

     

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  11.  
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    Anonymous Coward, Sep 4th, 2013 @ 1:07pm

    Response to: Anonymous Coward on Sep 4th, 2013 @ 12:45pm

    >asserting rights that were meant to expire decades ago

    How have you managed not to choke to death on that hideous **AA appendage?

     

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  12.  
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    crade (profile), Sep 4th, 2013 @ 1:09pm

    Re:

    Are you seriously trying to defend them by claiming this extortion is legal? If it's legal for them to charge for Happy Birthday at this point, it's a far harsher statement about how far copyright abuse has fallen than if it's illegal.

     

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  13.  
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    Anonymous Coward, Sep 4th, 2013 @ 1:18pm

    Re:

    "Again, all of the claims of "fraud" are really copyright claims at bottom.

    If you claim to own something (like a copyright on 'Happy Birthday') that you don't actually own, then try to get people to pay you for said thing you don't own, that's fraud.

    Please explain how that is copyright and not really fraud...

     

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  14.  
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    Anonymous Coward, Sep 4th, 2013 @ 2:02pm

    isn't it strange how one of the entertainment industries companies acts when it is going to get screwed over being naughty. it has been coning money out of people for tens of years and they think it's ok. when, however, someone is suspected of doing something to one of the things those same industries may actually have the rights to or ownership of, they go absolutely fucking ape -shit!

     

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  15.  
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    Anonymous Coward, Sep 4th, 2013 @ 2:14pm

    Warner has a history of wrong doing that goes back at least 30 years.

     

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  16.  
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    kitsune361, Sep 4th, 2013 @ 2:46pm

    So, if this is a fraud case...

    So, if this is a "fraud" case and corporations are "people"... why not have a criminal complaint brought against WMG simultaneously w/ the civil suit?

    If they don't settle out of court, I don't see how this doesn't take a decade or more to play out. It looks like Warner is brewing up a paper tempest in their teapot in this one.

     

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  17.  
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    Dogboy, Sep 4th, 2013 @ 3:09pm

    Didn't Good Morning to You Productions dismiss the case on July 26th, 2013 albeit without prejudice.

     

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  18.  
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    Anonymous Coward, Sep 4th, 2013 @ 3:53pm

    Re:

    What rights?

     

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  19.  
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    JMT (profile), Sep 4th, 2013 @ 6:03pm

    Re:

    "Internet lawyer wannabe fail."

    And we should take the word of an obnoxious AC over Mike because... why, again?

    "It's evil like kicking cats to assert their rights?"

    No, the whole point is that they should not have any such rights to assert. But you know that, you're just trying to twist things around to take a cheap shot. Sorry, you fail again.

     

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  20.  
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    Anonymous Coward, Sep 4th, 2013 @ 6:15pm

    Re:

    Not so much kicking cats, but it's kicking in the doors of people celebrating birthdays, then demanding cash for a "public performance" at a private party.

    average_joe just hates it when due process is enforced.

     

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  21.  
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    The Mighty Buzzard (profile), Sep 4th, 2013 @ 6:53pm

    Re: Re: Kittens?

    No, it's evil because of the superstar, free-agent kittens. A gray kitten with white feet can demand and get up to 150 times what a calico can wring out of the promoters.

     

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  22.  
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    techflaws (profile), Sep 4th, 2013 @ 10:28pm

    Re:

    I clicked on "here" just to add another click on report for your bullshit. You're welcome.

     

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  23.  
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    RonKaminsky (profile), Sep 5th, 2013 @ 1:42am

    Moved to California

    The original case was dismissed in the Southern District of NY on that date, and I had started to be worried that this was just an attempt to blackmail the blackmailers and go for a quick settlement bid.

    But it seems that the plaintiffs have refiled in California and are serious about this. Actually now that I think about it, Warner has little recourse but to fight, because any settlement out of court will be seen to be an admission of the weakness their claims, and will only lead to a never-ending succession of other challenges in reply to a demand for licensing fees.

    (On an aside: I was happy that I found a new interesting case on which to use up my uncharged $15-per-quarter PACER allocation, but wow --- just downloading the whole docket used up over $1. I see I can download just a partial docket by searching by document numbers, but does RECAP have any automatic consolidation in place for these kinds of partial docket searches?)

     

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  24.  
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    Mike Masnick (profile), Sep 5th, 2013 @ 1:45am

    Re:

    Didn't Good Morning to You Productions dismiss the case on July 26th, 2013 albeit without prejudice.


    Same law firm filed this one, and a third one as well. Basically the same lawsuit -- with two of them being consolidated (the Marya and the Siegel case) into this case. The GMTY lawsuit likely would have been consolidated as well. For whatever reason it appears they decided to drop that one and focus on this one instead. Lots of reasons why they may have chosen that... but, all in all, basically the same lawsuit.

     

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  25.  
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    Anonymous Coward, Sep 5th, 2013 @ 1:35pm

    Re: Re:

    They won't. Admitting that this is a suit for fraud and not for anything under the Copyright Act would destroy their whole argument.

     

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  26.  
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    Sheogorath (profile), Sep 7th, 2013 @ 1:08am

    Hey, Warner Music Group!

    "This tune's Public Domain
    This tune's Public Domain
    So it's free, WMG
    'Cos it's Public Domain
    Go fuck yourselves"
    Sung to a very familiar melody. };D

     

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