Charity Pops Up Claiming That It Holds The Copyright On Happy Birthday

from the zombie-copyright dept

It ain't over yet, folks. While many in the press went on and on back in September that the song "Happy Birthday" had been declared in the "public domain," as we pointed out, that's not what the judge said. He only said that the Summy Co. did not hold the copyright, because it seemed clear from a lawsuit back in the 1940s that the Hill Sisters (who sorta wrote the song -- long story) only assigned the rights to the music and not the lyrics -- and everyone agrees the music is now in the public domain. As we pointed out, this actually made the song an "orphan work", which created a new kind of mess, and as we noted, it was entirely possible that a third party could now make a claim to holding the copyright -- though we thought it was unlikely.

Oh, how naive of us.

While Warner/Chappell is asking the judge to give the copyright back to it, and the filmmakers who brought the suit are asking for the song to be declared definitively in the public domain, who should pop up out of nowhere... but... the heirs of the Hill Sisters, who are now claiming that if Warner/Chappell (via the Summy Co.) don't hold the copyright, then clearly the heirs of the Hill Sisters do:
Until this ruling, The Hill Foundation, Inc. (“Hill Foundation”) and the Association for Childhood Education International (“ACEI”) (collectively “Applicants”) believed the rights to the Song had been properly assigned to Summy Co. by the Song’s original author, Patty Hill, and her sister, Jessica Hill. Indeed, the Applicants have been accepting royalties from the Defendants for over twenty (20) years as the beneficiaries of Patty and Jessica Hill’s estates pursuant to what they believed was a valid assignment from the Hill Sisters to the Summy Co. As a result of the Court’s ruling, it is now likely that Applicants are the valid owners of the copyrights to the Song, and none of the current parties are able to adequately represent Applicants’ interests. For these reasons, Applicants respectfully request that this Motion to Intervene be granted, allowing them to protect their interests in the copyrights to the “Happy Birthday to You” lyrics.
Yup. The copyright on Happy Birthday is like a zombie that just keeps coming back again.

So, yeah, we warned that this was possible, but thought it wasn't likely -- but we should have known better. At least we didn't falsely report that the song had been declared in the public domain like most everyone else in the press. Of course, whether or not the heirs of the Hill Sisters have a legitimate claim here is another fairly large question -- and gets us right back to the question of whether or not the song really ought to be declared in the public domain. After the original ruling came out, Glenn Fleishman, over at Fast Company, was one of the only reporters who actually explored what arguments the Hill heirs might have:
The only likely group that has standing to pursue legal action if they demanded royalties and didn't receive them is the charity that became the ultimate beneficiary of the Hills, the Association for Childhood Education International (ACEI). It has received a third of royalties collected by Warner-Chappell for decades, or roughly $750,000 a year in recent years. Should ACEI choose to attempt to enforce rights, sue Warner-Chappell, or carry out any other action, it has just two bases on which it could proceed. (Diane Whitehead, the executive director of ACEI, says, "We are not commenting at this time.")

Patty Hill could have created the lyrics, written them down in some form, and never authorized publication. Unpublished manuscripts retain protection for 70 years following the last author's death, even for works this old. Patty died in 1946, and thus in this scenario, copyright expires on January 1, 2017. (Mildred likely had nothing to do with the lyrics, but her earlier demise makes that irrelevant.)

However, the Hill sisters in the 1940s lawsuit maintained that they had made a transfer of rights in 1935. These are the rights that the judge said didn't exist. That ruling could leave the unpublished rights active. But Brauneis says, "We don't know that Patty Smith Hill ever wrote anything down." No manuscript has ever been mentioned nor presented across multiple trials and 125 years. This also requires that the Hills never "abandoned" the rights, a complicated concept, but Brauneis says his reading of the judge's ruling is that King leaned toward that interpretation.
There was actually ample discussion during the court case and in the judge's ruling suggesting that if it's true that the Hills at some point had the copyright on "Happy Birthday" (even though it's not at all clear that they even came up with the lyrics), that Patty Hill almost certainly abandoned the rights under the laws at the time. The matter is made much more complex by the interplay of a few different copyright regimes, including common law copyright found in various state laws at the time, but it strikes me that the heirs of the Hill Sisters have an uphill battle here. But, until the court actually declares the song in the public domain -- contrary to what some people will tell you -- you probably should not go around singing the song in public claiming that you're free to do so.

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  • icon
    Ninja (profile), 10 Nov 2015 @ 9:27am

    Next episode on "Zombie Copyright":

    Alan Cooper emerges from the Prenda tomb and claims copyright on Happy Birthday and your mom...

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 10 Nov 2015 @ 9:32am

    Sweet Zombie Jesus MAKE IT STOP!

    reply to this | link to this | view in chronology ]

  • identicon
    PRMan, 10 Nov 2015 @ 9:41am

    A little song for you

    Happy Birthday to You
    Happy Birthday to You
    I'll sing this in public if I want to
    Happy Birthday to You

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2015 @ 9:50am

    terrible mess

    Whenever a wealthy person dies without a will, claimants to the estate generally have a very limited time in which to stake their claim. Yet when copright is involved, people can still be popping up out of the woodwork many decades later. This in just another example of why the whole copyright system in the US is a terrible mess (except to litigation attorneys, of course).

    And with TPP and other "free trade" international treaties, we're continuously trying to forcefeed this recycled vomit to the rest of the world.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2015 @ 10:12am

    This says it all right here

    No manuscript has ever been mentioned nor presented across multiple trials and 125 years.

    125 years. Let that sink in.

    reply to this | link to this | view in chronology ]

    • identicon
      RD, 10 Nov 2015 @ 10:15am

      Re: This says it all right here

      Obviously, 125 years of copyright coverage is just what the Founders intended with the "limited times" part of the copyright clause.

      reply to this | link to this | view in chronology ]

    • icon
      Atkray (profile), 10 Nov 2015 @ 5:24pm

      Re: This says it all right here

      You make an excellent point...if we can't resolve something this simple in 125 years then clearly 125 years for a copyright is too short.

      reply to this | link to this | view in chronology ]

  • icon
    jupiterkansas (profile), 10 Nov 2015 @ 10:29am

    Does this mean they might be able to sue Warners for fraudulently claiming copyright?

    reply to this | link to this | view in chronology ]

  • icon
    TechDescartes (profile), 10 Nov 2015 @ 10:31am

    Where There's a Will...

    As we pointed out, this actually made the song an "orphan work", which created a new kind of mess, and as we noted, it was entirely possible that a third party could now make a claim to holding the copyright -- though we thought it was unlikely.

    Oh, how naive of us.

    Yes, you forgot the adage: Where there's a will...there's a relative.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2015 @ 10:56am

    There is the problem

    Here is the problem with this whole thing:

    No manuscript has ever been mentioned nor presented across multiple trials and 125 years.

    This whole mess would be moot if copyright were set to expire after 28 years, as it was originally written (14 years, plus a non-automatically renewable extension of 14 years.)

    Heck, we wouldn't even be talking about this now if copyright were a more reasonable maximum of 70 years (14 years, plus four non-automatically renewable 14-year extensions 14+14+14+14+14=70).






     

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2015 @ 11:17am

    It's only 6 words long!

    The lyrics consist of 6 words (minus the repetition) ! It's got less content than a 1/4 of a tweet. How is that worthy of a copyright monopoly.

    reply to this | link to this | view in chronology ]

    • icon
      Richard (profile), 10 Nov 2015 @ 1:56pm

      Re: It's only 6 words long!

      The lyrics consist of 6 words (minus the repetition)

      Actually it consists mostly of the title - and song titles are not copyrightable- hence the multiple versions of "The Power of Love"
      That leaves the words "to you" and "dear" - but they are present in the original "Good morning to all" in exactly the same place - relative to the music. Finally there is the "insert name here" concept - but that is an idea not an expression and hence is not copyrightable.

      In conclusion it seems to me that "Happy Birthday" contains NO COPYRIGHTABLE ELEMENTS and hence has always been in the public domain.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Nov 2015 @ 3:47pm

        Re: Re: It's only 6 words long!

        Actually, that's a REALLY good point. When you add in that many people sing the song title for lines they can't remember in a song, and that the tune is no longer under copyright, that means that there's no logical argument for asserting copyright anymore, no matter what the claimants may state.

        If it's a derivative work from "Good Morning To All" (which is public domain), "Happy Birthday" is the title, and "to you" and "dear" are in the original, there are no original elements in the song, thus nothing to claim copyright over.

        I think I'm going to continue to let my kids sing it in public (like they were doing yesterday) and use that as my excuse should any lawyers come calling.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Nov 2015 @ 4:47pm

      Re: It's only 6 words long!

      This song's just six words long!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Nov 2015 @ 6:27am

      Re: It's only 6 words long!

      It's short enough to quote in Germany!

      reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 12 Nov 2015 @ 4:06am

      Re: It's only 6 words long!

      Thank you for calling it a "monopoly." :)

      reply to this | link to this | view in chronology ]

    • identicon
      Shawn Levasseur, 10 Dec 2015 @ 11:36am

      Re: It's only 6 words long!

      Al Yankovic comments:

      https://youtu.be/JWi5jdgTUJs

      reply to this | link to this | view in chronology ]

  • icon
    Christopher (profile), 10 Nov 2015 @ 11:24am

    There's the law...

    ... then there's this nitpicky overwrought discussion into minutae that makes me just give up caring. This is an academic exercise. Applying it in the real world is a waste of resources, and it's jerkoffs like you that actually perpetuate it by discussing it seriously.

    -C

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Nov 2015 @ 11:43am

      Re: There's the law...

      Care to expound upon your butt hurt?

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 10 Nov 2015 @ 8:18pm

      Re: There's the law...

      It has received a third of royalties collected by Warner-Chappell for decades, or roughly $750,000 a year in recent years.

      Yeah, most 'academic discussions' don't center around something that involves approximately $2.25 million a year.

      Now you may be rolling in the money, such that a couple million is negligible pocket change and not something to worry about, but for most of us, a case involving something related to that much money(especially if it's being attained fraudulently) is anything but trivial, and is in fact worth discussing.

      reply to this | link to this | view in chronology ]

  • identicon
    David, 10 Nov 2015 @ 11:56am

    I yearn for the day

    I yearn for the day when we'll finally be able to sing "happy dying day" to the copyright of "Happy Birthday". Or actually, the copyright of any old song, what with the constant retroactive copyright extensions which are a clear breach of the Constitution:

    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.


    Any mathematician will tell you that "limited Times to Authors and Inventors" means that said authors and inventors are given a limit. It's not a limit if you change it after the authors and inventors are dead.

    It actually is not even a limit if the clock starts clicking only once the author/inventor is dead.

    "Limited" means that at the time the copyright is given, its expiration date is known. Limits don't move. If they do that, they are not limits.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2015 @ 1:21pm

    Why is there not a statute of limitations on these claims and lawsuits?

    Criminal laws have statutes of limitation(s). Civil laws have similar statutes whereby the courts will not honor any claim or hear any case after so much time has elapsed.

    Even contract law has statutes of limitation(s), though you might not find it expressed in code. Courts usually do not enforce a contract that does not have a time limit or a definition of completion; many such contracts get declared unenforceable.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Nov 2015 @ 6:36am

      Re:

      Because, ostensibly, copyrights do have time limits. This was the Supreme Court's reasoning in Eldred v. Ashcroft.

      Presumably, the statute of limitation on copyright claims is the same as the duration of the copyright.

      reply to this | link to this | view in chronology ]

  • identicon
    k-h, 10 Nov 2015 @ 2:02pm

    Dear Frederick

    Just saying, I'm claiming copyright on Happy Birthday dear Frederick etc.

    The Hills' never claimed that did they?

    reply to this | link to this | view in chronology ]

  • identicon
    AC, 12 Nov 2015 @ 12:14pm

    Please, think of the poor lawyers!

    The important thing here is that hordes of lawyers are going to rake in a pile of money, endlessly arguing over something that is of no real consequence to approximately 99.9999999% of humanity.

    reply to this | link to this | view in chronology ]

  • identicon
    Bruce, 15 Nov 2015 @ 12:10pm

    There's a publication of the song from 1921

    In the discovery materials provided by Warner, there's a publication of the lyrics and melody in 1921, with an attribution of by permission of the Summy Corporation. I fail to understand why that doesn't invalidate the original copyright since the copyright law of the era required copyight registration within a year of the initial publication.

    reply to this | link to this | view in chronology ]

  • identicon
    as, 28 Jan 2016 @ 5:45am

    awesome

    awesome dudes

    reply to this | link to this | view in chronology ]


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