8Sided Blog

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“Happy Birthday” Copyright Ruled to Be Invalid

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The Hollywood Reporter:

According to the opinion on Tuesday from U.S. District Judge George H. King, “Because Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.”



The ruling means that Warner/Chappell will lose out on $2 million a year in reported revenue on the song. Unless something happens at an appellate court or unless someone else comes forward with a valid claim of ownership to the song, filmmakers like director Jennifer Nelson — who sued in 2013 over demands as much as six figures to license — will no longer have to pay to feature “Happy Birthday” in motion pictures and television shows.



This dispute is hardly over. Among other things, the plaintiffs represented by attorneys including Randall Newman and Mark Rifkin are contending that Warner should have to return millions of dollars in licensing fees. The issue of damages will come later.



Whoa … though based on our previous posts on this case, we could’ve seen it coming.

If you make music specifically for film / TV licensing, then it might be a smart move to immediately start working on versions of “Happy Birthday” in different styles and genres. Just sayin’.



Update: ARS Technica goes into greater detail about the decision. This isn’t a done deal just yet … apparently it ain’t over until the fat lady sings “Happy Birthday”. (sorry)

Update 2: Four Ways Musicians Can Make Money With Happy Birthday Now That It’s In The Public Domain

Inspiration Or Appropriation?

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NPR:

Where do you draw the line between inspiration and appropriation when it comes to musical compositions? That question is at the heart of several high-profile court cases, including the recent “Blurred Lines” trial and a current copyright-infringement lawsuit involving “Stairway to Heaven.” But it isn’t always easy to prove a song is yours – particularly when you’re up against one of the biggest rock and roll bands of all time.



But proving a song is yours isn’t always easy, says leading music attorney Ken Anderson. “The first step is establishing ownership,” Anderson says. “That means that the material is original to you, meaning you’re the one who created the material.” [He] says you also have to show that the accused had access to your material.



“We listen to the music if it’s recorded, or we study it if it’s only in written form,” says [musicologist Judith Finell, who has testified in many high-profile cases]. “And usually, we transcribe any section of that music if it sounds similar to the other music we’re comparing it to. Then we start to determine if they have similar pitches in common, similar rhythms. What is it that makes them sound related?”


This is a fun radio piece from NPR, which does focus mostly on Led Zeppelin’s infamous ‘appropriations.’ I wouldn’t put the “Blurred Lines” case in the same category as “Stairway To Heaven”, though … I see some merit in the latter, but, personally, not much in the former. (As I tweeted to a friend the week that the “Blurred Lines” lawsuit went for the plaintiff, “I wonder what the Bob Marley estate is thinking right now.”)

I’ve recently been doing some consulting work for a well-known songwriter, and a recent top 40 hit by an unrelated artist contains a melody line that is suspiciously similar to one of hers. The artist in question (or, more likely, his label) was proactive in that he gave my client shared songwriting credit, but without contacting her. We found out through online press that the song received. No one here is upset – the similar part is brief, and my client is happy for the extra royalty that should come in – but this practice of preventively crediting songwriters that may or may not have been intentionally appropriated is new to me. It’s probably a lot more common than I know, mainly due to the issues raised in the NPR piece.

An Update: What The Hell Is Going On With Soundcloud?

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I really don’t mean to be posting about SoundCloud every single day, but this new article from FACT, nicely summing up the service’s recent headaches and the cause for these issues, is too good to pass up.

FACT:

Moves like this and the suspension of Dummy’s account aren’t great PR for SoundCloud. In both cases there’s no evidence to suggest they’ve done anything to warrant having their accounts shut down, and it affects the livelihood of both. Dummy, like many music sites, relies on its account to host track premieres from small artists, who in turn get the boost from Dummy’s following. If a music magazine were to lose its SoundCloud account, it could suffer a loss of traffic from a lack of premieres, and smaller artists lose a platform for exposure. But anecdotal evidence suggests this isn’t necessarily the fault of SoundCloud, but of heavy-handed requests from major labels over a licensing impasse that’s been going on for over a year.



SoundCloud has an official line on copyrighted material, but much of what goes on behind the scenes is still unknown to most people. In Dummy’s case, the trigger for its problems was material it claims had been sitting there for years. The goalposts seem to be moved on a daily basis, and nobody really has any idea why, or to what extent.



FACT asked Sony Music for comment on both their policy regarding SoundCloud account takedowns and Dummy’s allegations that it was given the tracks to host by the company itself, but Sony has yet to respond. Sony has every right to ask SoundCloud to remove illegally uploaded or remixed material, but its treatment of Dummy seems especially heavy-handed given the situation, and its silence on the matter makes it seem as if it’s happy to let SoundCloud take the blame.



The potential loss of the platform would have fairly serious implications, not just for small artists but the music industry as a whole. If the service goes the way of Grooveshark, it won’t just be underground artists like Plastician that lose their access to a wealth of undiscovered talent – it’ll be the majors losing their access to the next generation of hitmakers too.

SoundCloud’s ‘Three Strikes’ Policy Claims Another High Profile Victim

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Dummy:

Soundcloud have frozen Dummy’s account which we have grown to over 21,000 followers having used and supported the service since it first launched. Although the page is still visible, we can no longer access to repost or upload tracks.



The reason Soundcloud has given is that we have received three strikes for content that we have uploaded which is in breach of major record company Sony’s copyright, although Soundcloud have so far not told us which tracks are in question.



Soundcloud have stated if we can persuade Sony to remove the objections then they will remove the strikes to restore and unlock our account. However, under instruction from Sony, Soundcloud are not allowed to tell us who to contact within the organisation. We have only ever uploaded music that Sony have sent us to promote, so it seems ridiculous that they would want to shut down our account and prevent us from supporting new music signed to their label in the future.


This is an update to yesterday’s post, and more evidence that the pressure on SoundCloud is getting to deep sea levels. Not that I’m advocating favored exceptions to SC’s policy, but it hardly seems like a good idea to target a respected and somewhat influential music site like Dummy. And obviously Sony isn’t the one getting tarnished in the eyes of the public. Perhaps SoundCloud should be more transparent in their take-down notices as to why certain content is not permitted, spinning it as more of a case of boycotting content from those who won’t play nice at the bargaining table. All of this backwards-bending and high stakes negotiating won’t mean anything if SoundCloud emerges with a MySpace-like public indifference.

The Twisted History Of The Happy Birthday Song And The Copyright Shenanigans That Keep It Profitable

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Here’s more on “Happy Birthday”, via Boing Boing:

This suit was nearing its conclusion when a thrilling last-minute piece of evidence emerged from Warner/Chappell: an excerpt of a 1927 title called The Everyday Song Book produced by the piano-making firm, The Cable Company. The song, numbered 16, is called “Good Morning and Birthday Song” with the main lyrics under the score, and “optional” words below for “Happy Birthday.” The ostensible copyright notice was blurred in the version supplied by the music company.



Nelson’s lawyer noted it was not the first edition, and were able to get a library to dig up the 1922 version. The same version appears there without a legally required statement of copyright.



This would seem to be the end of the line for “Happy Birthday.” The (plaintiff) should prevail; fees collected starting in 2009, within the statute of limitations at the time the suit was filed, should be refunded; and a clear future would be established for public-domain use. But copyright is a crooked path.



It would be nice to close the book on “Happy Birthday,” but it doesn’t close the book on copyright absurdity. An abundance of material from 1923 is poised to enter the public domain in 2019 unless a further taking of the public interest occurs, as the Sonny Bono Copyright Term Extension Act did in 1998, adding an unnecessary 20 years to the existing 50 years’ protection past an authors’ death.


I’ve been following this convoluted case for a while, and the article on Boing Boing quoted above is perhaps the best summation of the whole thing that I’ve seen. It also includes background on the sisters who wrote “Happy Birthday” … their story, which I didn’t really know, is fascinating.

Happy Birthday Copyright Bombshell: New Evidence Warner Music Previously Hid Shows Song Is Public Domain

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Ars Technica:

Further investigation showed that the song appeared in editions stretching back to 1922, which in the plaintiffs’ view “proves conclusively” that “Happy Birthday” entered the public domain no later than that year. The song was printed without a copyright notice unlike other songs in the book. Rather, it included a notice that read “Special permission through courtesy of The Clayton F. Summy Co.”



That important line of text published underneath the song’s lyrics was “blurred almost beyond legibility” in the copy that Warner/Chappell handed over in discovery. Plaintiffs’ lawyers note that it’s “the only line of the entire PDF that is blurred in that manner.”

Techdirt:

If you haven’t been following the issue closely, there is actually a lot of evidence, much of it put together by Robert Brauneis, that the song really should be in the public domain. There are all sorts of questions raised about how it became covered by copyright in the first place. Everyone agrees the song was originally written as “Good Morning to All” in the late 1800s, but from there, there’s lots of confusion and speculation as to how it eventually was given a copyright in 1935, granted to the Clayton F. Summy company. People have argued that the 1935 copyright was really just on a particular piano arrangement, but not the melody or lyrics to Happy Birthday To You — which had both been around long before 1935.



This latest finding at least calls into question how honest Warner/Chappel has been for decades in arguing that everyone needs to pay the company to license “Happy Birthday” even as the song was almost certainly in the public domain.



This would be a pretty big shake-up, especially if Warner/Chappel were ordered to retroactively pay back license fees if it’s proven they had knowledge of all this. Regardless, the fight over “Happy Birthday” is becoming the music publishing world’s equivalent to a juicy detective novel.