Happy Birthday copyright

Cecil's Columns/Staff Reports
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Cecil’s column: Are blue jays not really blue? Plus: has the copyright on “Happy Birthday” expired yet?

Cecil says: “The copyright laws having been revised, the copyright on “Happy Birthday” now won’t expire until 2011 — or at least so says Warner/Chappell Music Group, current owner of the song.”

So said Warners but big corporations don’t surrender a lucrative copyright that easily, as we know from their successful manoeuvres in the 90s to extend movie copyright until most of us have one foot in the grave. Warners are still in court this year claiming they own the song.

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I don’t know where Cecil got the 2011 date from. It’s based on nothing I know of in copyright law.

That Wikipedia link says that Warner/Chapell claims a 2030 expiration, which is 95 years after its creation, directly in line for a corporate copyright under the current law.

Cecil blew it, whether or not the Warner claim can be backed up in law.

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http://www.straightdope.com/columns/read/2345/are-blue-jays-not-really-blue-plus

Yeah, I just wanted to point out, Cecil Adams skipped one important point. Part of the reason why you could sing this song (before it became public domain), was the fair use doctrine.

Here is the Wikipedia cite. But basically, the fair use doctrine says that even consumers of copyrighted material, have certain rights.

I first read about the fair use doctrine in my law dictionary (which, FWIW, is now about 20 years old, and hopefully not out-of-date). According to my law dictionary, the fair use doctrine used to be a matter for the courts. Now, it is largely a statutory matter, though the courts may still have some say.

So, for example, if you want to save a copyrighted picture on your computer, but you’re the only one who will ever see it, that is okay. But if you start selling it or (this is important) “distributing” it (N.B.), that may be a different matter.

One test of the fair use doctrine came up recently with file sharing on the internet. People would say, but I am only sharing this MP3 with a few of my friends on line. But the recording industry said, BS, you are distributing it without permission, “that” is illegal.

Plus as my teacher once told us in grade school, it is not like the people who owned the song “Happy Birthday” are going to come to your house and arrest you at your birthday party. So their were de facto applications as well, even before the fair use doctrine.

:):):slight_smile:

P.S. I just read the other thread. And apparently the copyright on “Happy Birthday” won’t expire until 2030. But everything else I said still applies;).

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More precisely, the Wikipedia entry correctly notes that, assuming a 1935 copyright date, “the song would not pass into the public domain until the end of 2030”, i.e. January 1, 2031 under the current 95-year U.S. copyright standards.

Prior to the 1998 adoption of the Copyright Term Extension Act, U.S. copyright was for “only” 75 years, which works out to January 1, 2011 for all 1935 publications .

If the column date of July 28, 2000 is correct then Little Ed made an editing error because the new rule was already in effect. In any event, the column needs to be updated to say 2031 instead of 2011, with the understanding that its never too late not only to extend the length once more, but the Supreme Court has also ruled that it is legal to retroactively extend dates so that materials currently in the public domain can be returned to copyright status.

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Reported as duplicate threat, hopefully to be merged with Happy Birthday copyright - Cecil's Columns/Staff Reports - Straight Dope Message Board (in a sane world).

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Merged.

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Music performance rights are different. Fair use does not apply to singing a song.

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However, in the last few weeks, evidence has turned up substantially antedating the words. The song may be P.D. right now, and Warner-Chappel may owe a lot of people a lot of money.

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The local German brewery-cum-restaurant-cum-cabaret Tawandang just celebrated their 16th anniversary yesterday (Thursday). Every single night of those 16 years, they’ve done a shtick where they honor everyone in the audience who’s having a birthday with a rousing rendition of the song. This is Thailand, and I doubt they’re paying copyright to anyone. They don’t charge for their performances, it’s just house entertainment, there’s no cover charge, so how would something like that fall?

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The bar also presumably serves drinks that people pay for, possibly having been enticed to come by having “Happy Birthday” sung to them. So it could certainly be argued that they make some money off the song, even if they don’t directly charge for being there and having it sung.

But even if the bar was just an empty room where people came to have “Happy Birthday” sung to them for free, Warner-Chappel could argue that they could have opened their own “Happy Birthday” room that charged an entry and per-song fee and people would have totally paid those fees in the absence of these copyright scofflaws giving away illegal "Happy Birthday"s for free.

Of course that would be silly for them to do, but “I wasn’t making any money off it” is not a defense against copyright infringement.

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This bar is in Thailand. US copyright law does not apply in Thailand. For all we know, the copyright on HBTY could have already expired in Thailand.

As a matter of fact, public performances at “non-profit” events in the United States were not copyright infringement until the Copyright Act of 1976. Performances at worship services are still exempt in the US. The laws of each country have their own quirks.

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It’s probably not out-of-date, but it apparently didn’t do a very good job of explaining the law. To a lawyer, this description—“the fair use doctrine used to be a matter for the courts. Now, it is largely a statutory matter, though the courts may still have some say”—is extremely garbled and reflects an inadequate understanding of the American legal system.

The fair use doctrine was created by courts adjudicating particular cases, which is how doctrines are created in the common law system. Eventually, Congress incorporated the doctrine into statute—Section 107 of the Copyright Act of 1976, 17 U.S.C. §107.

In enacting Section 107, Congress merely took the balancing test that the courts had already been using and put it into the statute. For all practical purposes, that means that the only thing that changed was that all courts must apply this same balancing test in all fair use cases.

It didn’t change the fact that the court is basically using its own judgment on a case-by-case basis to determine whether a particular use is fair use.

So, despite fair use now being statutory, the question of any particular use being a fair use can’t be definitively resolved until a court has applied its judgment to the question.

It doesn’t?

It’s a place of business that’s open to the public. Thus a performance there is a public performance, which is within the exclusive rights of the copyright holder.

And if you want to go into the economic rationale—being part of the “house entertainment” means that they believe that it is enhancing the quality of their services and thereby hoping to increase their profits and thus they are benefiting from exploiting someone else’s property.

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Apparently the term of copyright in Thailand is life of the author + 50 years. (Or so Wikipedia says, and I can’t read Thai to check the references.) The longer-lived of the Hill sisters died in 1946, so the copyright in Thailand would have expired in 1996.

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Some sort of US copyright coverage is in place here. It may have to do with international treaties. But intellectual property rights is a big issue here (in no small part because they’re so ignored). One example is a local supplier of cooking-gas cylinders to homes and small family-run restaurants dressed all their deliverymen as Spider-Man as a publicity stunt. Marvel Comics cracked down on it and made them stop. A little bit about that here. Of course, Marvel has a local agent here, but still, international law covers this to some extent. They’re always trying to crackdown on piracy, although the pirates who get caught are usually just the ones who have fallen behind in their bribe payments.

Yeah, that’s my thought. But for all I know, this place does pay royalties. They perform a lot of popular Western songs in addition to Thai fair, and they have elaborate stage shows with choreographed dancers. The place is a really big deal here.

But there are lots of little seedy joints singing or playing recordings of songs that are surely not paying anything.

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My understanding is that while you may have a fair use claim in quoting part of a song, public performance of a significant portion of a song in a commercial setting falls under the various music licensing rules. People on television sometimes joke about having to stop before they get through eight seconds so they don’t have to pay the rights fees, so apparently a blanket ban can’t be enforced.

I’ve never heard of fair use being applied in this situation. Do you have case law that says otherwise? I’d seriously like to know.

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It seems very strange to me to publish an article that predicts something will happen in 2011 and then republish that same article in 2015 without bothering to even comment on whether the thing you predicted did or did not actually happen in 2011. I agree with you; the article needs to be updated.

IMHO, congress is completely ignoring the spirit of how copyrights are supposed to work. The constitution say it’s supposed to be for limited times. But when you say “okay it’s only for 28 years” and then a few years later you say “did I say 28? I meant 75. Yeah it’s for 75 years” and then when the 75 years is almost up, you say “On second thought, let’s make it 95 years” et cetera et cetera et cetera, then essentially you’re making it PERMANENT. Having limits which are always being pushed back is no different from having no limits at all.

The end result of this debacle is that anything written after 1928 will ALWAYS be under copyright, because Disney’s lobbyists will make sure that the laws get rewritten every few years, just enough so that Mickey Mouse never enters public domain.

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And yet, I haven’t heard of any major legislative push, here or anywhere else in the world, to extend copyright laws again before 2018 rolls around. (Hell, Mein Kampf passed into the public domain earlier this year and the German government just let it happen.)

Nor would I expect one to do well in this age, considering what happened the last time the industry tried to rewrite copyright law in its favor.

Nor would Steamboat Willie passing into the public domain mean that just anyone could start making their own line of Mickey Mouse cartoons, much like how the Superman radio show being PD doesn’t mean I can just start my own Superman comic book tomorrow - trademarks and licensing rights are a whole other kettle of fish.

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The fair use doctrine makes no absolute statements. It’s a balancing test. And every one of the four prongs of the test is squashy The amount of the work used must be no more than needed. That might mean that an entire recording is rarely going to be an acceptable amount, but it doesn’t mean that it will never be the case that use of an entire work will be fair use.

People might set up their work systems to account for fair use with rules of thumb like “eight seconds,” but these are not boundaries of fair use established by the law itself.

And there’s nothing in fair use law that says that eight seconds or less will always be fair use. Again, you have to apply the entire four-part test.

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As many have noted, Mickey Mouse is trademarked, and a trademark can live as long as the company does. When, not if, Steamboat Willie passes into the public domain, people will be able to sell copies of that cartoon without affecting Disney in any other way. Disney will be out a few pennies and still make all its billions.

Your date is also wrong. Everything through 1922 is in the public domain (with the usual few oddball exceptions: normal users can assume p.d. without consequence). 1923 works will enter the public domain in 2018. 1928 works will do so in 2023. There is no end result and also no debacle.

Which is all stuff I have often said. Even so, I have never heard of a case in which someone successfully claimed fair use over a commercial use of a song, nor have you provided any. What Jim B. said is wrong, and that was my point.

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In the U.S., works published in 1923 are currently scheduled to enter the public domain on January 1, 2019, and 1928 works on January 1, 2024. Public Domain Day 2024 | Duke University School of Law has a good overview.