# Question on copyright law. **URL:** \ **Category:** Factual Questions\ **Created:** [June 1, 2014, 5:38pm UTC](https://boards.straightdope.com/t/question-on-copyright-law/689780 "2014-06-01T17:38:40Z")\ **Posts on this page:** 8\ **Page:** 3
**Author:** ![Learjeff](https://avatars.discourse-cdn.com/v4/letter/l/94ad74/32.png) [@Learjeff](https://boards.straightdope.com/u/Learjeff)\ **Post date:** [June 4, 2014, 2:07pm UTC](https://boards.straightdope.com/t/question-on-copyright-law/689780/41 "2014-06-04T14:07:45Z")
News article about the lawsuit: > **[Birthday Song’s Copyright Leads to a Lawsuit for the Ages (Published 2013)](https://www.nytimes.com/2013/06/14/nyregion/lawsuit-aims-to-strip-happy-birthday-to-you-of-its-copyright.html?_r=0)** > > A filmmaker is seeking to have a court declare the popular ditty to be in the public domain and to block a music company from charging licensing fees for its use. Here’s a scholarly opinion that claims that it should be public domain [pdf] [http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1303&context=faculty\_publications](http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1303&context=faculty_publications) ---
**Author:** ![Learjeff](https://avatars.discourse-cdn.com/v4/letter/l/94ad74/32.png) [@Learjeff](https://boards.straightdope.com/u/Learjeff)\ **Post date:** [June 4, 2014, 2:09pm UTC](https://boards.straightdope.com/t/question-on-copyright-law/689780/42 "2014-06-04T14:09:56Z")
News article about the lawsuit, good intro: > **[Birthday Song’s Copyright Leads to a Lawsuit for the Ages (Published 2013)](https://www.nytimes.com/2013/06/14/nyregion/lawsuit-aims-to-strip-happy-birthday-to-you-of-its-copyright.html?_r=0)** > > A filmmaker is seeking to have a court declare the popular ditty to be in the public domain and to block a music company from charging licensing fees for its use. More recent developments (as of Oct 2013) > **[Court Keeps Candles Lit on Dispute Over ‘Happy Birthday’ Copyright](https://variety.com/2013/biz/news/court-keeps-candles-lit-on-dispute-over-happy-birthday-copyright-1200703048/)** > > A group of filmmakers and a San Francisco musician are challenging Warner/Chappell Music’s claim to copyright ownership of what is perhaps the most popular song of all time — “Hap… Here’s a scholarly opinion predating the suit, which claims that it should be public domain [pdf] [http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1303&context=faculty\_publications](http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1303&context=faculty_publications) ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [June 4, 2014, 2:11pm UTC](https://boards.straightdope.com/t/question-on-copyright-law/689780/43 "2014-06-04T14:11:34Z")
> [@md2000](#): > > Likely what happened with “Happy Birthday” was the same situation as with The Lion Sleeps Tonight. Wiki for TLST says that the publishers were in the habit of taking traditional songs, making minor changes to them, then registering the copyright (in the case of TLST) under fictitious names for lyrics and tune to capture any future cover royalties. Apparently sufficient changes to a traditional song was enough to establish copyright on the new version, and good enough lawyers helped enforce it. But that was also successful because the original writers did not know their work had been taken. I also think that Happy Birthday was in it’s current form before it was copyrighted. So what happens if I do not get a copyright (admittedly difficult to do today) and someone else copyrights it and I came a couple years later with proof that it is my work OR as in the case of Happy Birthday someone else comes along and says the claimed copyright holder did not originate the work and here’s proof … ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [June 4, 2014, 2:13pm UTC](https://boards.straightdope.com/t/question-on-copyright-law/689780/44 "2014-06-04T14:13:37Z")
> [@Learjeff](#): > > … > > First, thanks for the clarification about Mickey: excellent point… yeah, some other discussion I saw suggested you’d be able to sell public domain copies of Steamboat Willie; but the only illustrations of Mickey you could use in the publicity would be stills from the cartoon. Create a Mickey Mouse in any other pose, or update his appearance to contemporary standards, and you’re violating trademark. I assume any wording used in any advertising would be examined by Disney Lawyers with a fine-toothed comb. > [@Learjeff](#): > > … > Second, I’ll have to gather my facts and consider your position about the Berne convention being the reason for the extension. If you are correct, then the guy who created Creative Commons is all worried over nothing, which could be the case. > > The history (which I probably won’t get quite right) for HB is that a schoolteacher and her pianist sister came up with it using a common traditional melody at the time (but not exactly) and providing the words, for the kids to sing. Much later, a publisher notated it and published it, obtaining a copyright for that purpose. > > In my opinion, the original copyright should have covered the sheet music but not the composition. However, it’s been interpreted as covering both for a long time. The cost for a license is low enough that producers either pay it or omit the song rather than fight it, but someone is currently fighting it. > > IIRC, the original words aren’t quite the same as we sing it today. From what I got from a few articles… The tune may or may not have been traditional. The sisters first sang it as “Good Morning to All” in the late 1890’s. Supposedly there was a second verse of Happy Birthday. Supposedly, also, there are numerous instances of it being sung (as Happy Birthday) well before 1935, including a 1932 cartoon. So the question is - what was the process to copyright something in 1935? was it first through the Copyright Office door? Did you actually have to have written the music or words? Did copyright start the day it was registered or the day you allegedly composed it? One copyright owner was a songwriter active around 1910, so it’s possible some of it is legitimately his variation. ---
**Author:** ![Learjeff](https://avatars.discourse-cdn.com/v4/letter/l/94ad74/32.png) [@Learjeff](https://boards.straightdope.com/u/Learjeff)\ **Post date:** [June 4, 2014, 2:24pm UTC](https://boards.straightdope.com/t/question-on-copyright-law/689780/45 "2014-06-04T14:24:42Z")
> [@Saint\_Cad](#): > > But the OP refers to anything 1923 or after so “copyright” for this thread means taking the steps needed to obtain/renew a copyright given the laws at the time. We can use the term “registered” and it will be meaningful and not misleading regardless of the time period. > [@commasense](#): > > I just want to point out that although the first sentence is correct, as a practical matter it is highly unlikely that one could ever succeed _financially_ in a lawsuit over an unregistered copyright. When a copyright is properly registered, the law provides for statutory penalties of up to $150,000 per infringement, which goes some way towards making the filing of a suit and paying lawyers worthwhile. Actually [nitpick] you can’t even file suit without registering. However, the awards differ depending on whether the infringement preceded the registration, as I mentioned above. > [@](#): > > Without registration [prior to the infringement], all you can sue for is actual damages, which, unless you’re talking about a huge hit song or something, is unlikely to be worth the trouble. You can pay a lawyer out of your own pocket, and as **Acsenray** suggests, you may prevail if you have the evidence, but it will be a symbolic victory: you will have spent a fortune that you will not be legally entitled to recover. Correct. I misspoke above regarding evidence. In order to be considered prima-facie evidence, a copyright has to be registered within 5 years of publication. In the era of the web, the meaning of “publication” hasn’t yet been adjudicated (at least, last time I asked my father, a couple years back). But my guess is, if you post it for anyone to hear, that could be considered “publication”. Anyone interested in US copyrights should read the following page: > **[Copyright in General (FAQ) | U.S. Copyright Office](https://www.copyright.gov/help/faq/faq-general.html)** > > Copyright in General ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 4, 2014, 4:25pm UTC](https://boards.straightdope.com/t/question-on-copyright-law/689780/46 "2014-06-04T16:25:56Z")
> [@Learjeff](#): > > No, my father is a retired patent attorney, and we’ve discussed patent/trademark/copyright issues many times. Also, as an amateur musician/composer, I’ve studied the US gov’t copyright website (full of useful info) and paid attention to forum discussions. So, I know just enough to be dangerous. You and me both, buddy. ---
**Author:** ![commasense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/commasense/32/3017_2.png) [@commasense](https://boards.straightdope.com/u/commasense)\ **Post date:** [June 5, 2014, 5:25pm UTC](https://boards.straightdope.com/t/question-on-copyright-law/689780/47 "2014-06-05T17:25:05Z")
> [@Learjeff](#): > > I misspoke above regarding evidence. In order to be considered prima-facie evidence, a copyright has to be registered within 5 years of publication. Perhaps the periods differ for different types of works, but I can tell you that periodicals (which is where I, as a newsletter publisher, get my experience in copyright law) must be registered within 90 days of publication to receive statutory penalties. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 5, 2014, 7:43pm UTC](https://boards.straightdope.com/t/question-on-copyright-law/689780/48 "2014-06-05T19:43:18Z")
It is 90 days: [17 U.S. Code § 412 - Registration as prerequisite to certain remedies for infringement](http://www.law.cornell.edu/uscode/text/17/412) > [@](#): > > In any action under this title, other than an action brought for a violation of the rights of the author under section 106A (a), an action for infringement of the copyright of a work that has been preregistered under section 408 (f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411 (c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for— > > (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or > (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work. [Previous page](https://boards.straightdope.com/t/question-on-copyright-law/689780.md?page=2)