Happy Birthday And The Problem With The Copyright Office's 'Orphan Works' Plan
from the orphan-works-are-your-fault,-don't-blame-us dept
It's worse than that. As we noted in our original post, technically, this makes "Happy Birthday" an orphan work -- i.e., a work where the exact copyright status or owner is "unknown." Orphan works have been a big problem that the Copyright Office has been studying for some time. However, the solution proposed by the Copyright Office is ridiculous, and the case of Happy Birthday should demonstrate pretty simply why the proposal is broken.
The plan says that anyone who wants to make use of an orphaned work would have to meet six criteria to avoid possible liability:
Users must: (1) if sued for infringement, prove to the court by a preponderance of the evidence that they performed a good faith, qualifying search to locate and identify the owner of the infringed copyright before the use of the work began; (2) file a Notice of Use with the Copyright Office; (3) provide attribution to the legal owner of the copyright, if reasonable under the circumstances; (4) include a to-be-determined "orphan works" symbol with any public distribution, display, or performance of the work; (5) assert eligibility for such limitations in the initial pleading in any civil action involving the infringed work; and (6) state with particularity the basis for eligibility for the limitations during initial discovery disclosures.Now, let's look at this in terms of Happy Birthday. If you want to sing Happy Birthday, you would first have to conduct and document a "good faith, qualifying search to locate and identify the owner" of Happy Birthday before you sang it. You would then have to file a "notice of use" with the Copyright Office, telling the Copyright Office about this use of an orphaned work. Now, obviously, for most folks singing "happy birthday" at a birthday party, they're not going to do that -- and that's fine. After all, they ignored the copyright when many believed Warner/Chappell held a valid copyright.
But -- and here's the important point -- all of the "professional" situations where the song was used would almost certainly have to go through this process. Films that used the song wouldn't be able to get "errors and omissions" (E&O) insurance without first proving they made it through this process (and you need E&O insurance to ever get a movie released). Restaurants that wanted to sing Happy Birthday rather than their made up song would need to do the same thing. And they'd all likely have to hire lawyers in order to properly document the "search" and to file the notice with the Copyright Office. And very few people are going to want to go through that process. It may be slightly better than paying thousands of dollars to Warner/Chappell, but not much.
How is this solution possibly a "good compromise" on the issue of orphan works? How does adding such a burden, just so someone can sing Happy Birthday, possibly make sense?
Once again, the "problem" of orphan works is a self-made problem, created by copyright laws that automatically grant copyright to all new fixed works, rather than requiring registration in the first place. If it required registration, there would be some sort of record and paper trail of who owned the copyright and when it was valid. But in a world where everything gets copyright protection, we get a world with millions upon millions of orphaned works -- and if anyone who ever wanted to do anything with it had to go through the convoluted mess just to do something like sing Happy Birthday, the "answer" is no answer at all. It's just making a bad problem worse.
The way to fix orphan works is not to increase the burden, it's to fix a broken copyright system, and to require registration in the first place.
Bonus content: This doesn't fit directly into this post about orphan works, but this video by Vi Hart about the copyright on Happy Birthday is totally worth watching, presenting the issue from the perspective of someone knowledgeable about music theory, rather than copyright law, and showing yet another way in which the idea that Happy Birthday ever deserved copyright is a ridiculous idea.