It's Time For A New, Copyright-Free Happy Birthday Song, So Help Write One

from the out-with-the-old dept

Thu, Jan 3rd 2013 11:37am — Mike Masnick

As you may or may not know, Warner Chappell has claimed that the "most famous song in the world," Happy Birthday To You, is covered by a copyright held by itself (which it purchased years back). The song generates a ridiculous amount of money per year (estimates say around $2 million) in licensing fees. Back in 2008, we pointed to a detailed academic paper that argues persuasively that the song is not subject to copyright, and should be in the public domain. A few years later, even more evidence was added, showing that the song is firmly in the public domain (and probably has been for over a century). The problem, of course, is that no one is willing to go up against a giant company like Warner to challenge the copyright.

So, perhaps there's another solution? The folks at the Free Music Archive and WFMU are teaming up to host a "New Happy Birthday Song" contest, asking people to write their own song which they hope to use to replace the more controversial one. They've got a fantastic slate of judges including Jonathan Coulton, Ira Kaplan (from Yo La Tengo) and Larry Lessig among others. Also, they've put together this fun video of TV shows and movies trying to sing alternate songs to avoid being handed a bill: Of course, if I had one complaint about the contest, it's the choice of licenses they're requiring for entries. They've picked Attribution 2.0 Unported (CC BY 3.0), which is a good and very permissive license -- but I could see how even the attribution part becomes awkward here in some cases. If ever there were a case to support CC 0 licenses this seems like a good one. Yes, I could see how the "attribution" requirement might help make the concept slightly more viral, but I'm not sure if that's enough of a benefit here.

Also, of course, this is definitely a cultural longshot. Convincing the world to switch Happy Birthday songs is, perhaps, the ultimate in quixotic goals. But that doesn't mean that it isn't worth a shot. So, if you ever wanted a chance to create a song that might, possibly replace the most popular song on the planet, now's your chance.

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Filed Under: copyright, culture, happy birthday, public domain

53 Comments

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Anonymous Coward, 3 Jan 2013 @ 11:48am

Plus it's not really copyright free if it's under cc- by terms. Free as in speech yes, but that license is only enforceable due to copyright law
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crade (profile), 3 Jan 2013 @ 11:50am

Why bother? If it ever actually did catch on, some corrupt company would just usurp the copyright anyway and no one would be able to fight over it all over again.
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Zakida Paul (profile), 3 Jan 2013 @ 11:54am

It's your birthday
It's your birthday
Another year closer to death
Happy birthday
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Anonymous Coward, 3 Jan 2013 @ 11:54am

This raises the obvious question, how does a claimant prove they own copyright?
Is lots of money to win by default in legal proceeding proof of ownership of copyright?
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Jon B. (profile), 3 Jan 2013 @ 11:55am

Sure, go ahead and create another copyright-free Happy Birthday song. I'll just claim copyright and sue you over it anyway and you can just *try* to go against me.
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DannyB (profile), 3 Jan 2013 @ 11:55am

Cultural Long Shot
Maybe it's a cultural long shot. But things can go viral for various reasons. One reason is when everyone recognizes a wrong but is individually powerless to do anything about it. Another reason is self interest. Having a new song that:
1. no cost
2. no lawsuit
3. sticks it to the copyright owner demonstrating vulgar greed
may be all the self-interest it takes.

Notice how the United Breaks Guitars song went viral. People could relate, but couldn't do anything about getting screwed by airlines, other than to spread the song.

If the new song is any good, everyone has a motive to use it.
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DannyB (profile), 3 Jan 2013 @ 11:58am

Re:
It may be very undesirable to have it be copyright-free (eg, public domain).

The evil basterds(tm) can take a public domain work, incorporate into one of their own copyrighted works, and then sue anyone who uses the new song because it infringes their copyrighted work. Wrong yes. But who wants to stand up to them? Nobody.

Having the new song copyrighted and protected by a permissive license is better protection.
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DannyB (profile), 3 Jan 2013 @ 11:58am

Re:
If the author bothers to register their copyright, this is unlikely to happen.
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crade (profile), 3 Jan 2013 @ 11:59am

Re:
And the obvious answer is: they don't need to.
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S. T. Stone, 3 Jan 2013 @ 12:00pm

Aqua Teen Hunger Force did it.
Seriously, didn�t Master Shake � along with Geddy Lee and Zakk Wylde � already handle this?
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crade (profile), 3 Jan 2013 @ 12:01pm

Re: Re:
More like if it never becomes worthwhile for someone with deep pockets to corrupt the process, this is unlikely to happen.
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Nigel (profile), 3 Jan 2013 @ 12:03pm

Flash Mob
We should organize a huge flash mob to sing happy birthday in front of their offices.

10585 Santa Monica Boulevard Los Angeles, CA 90025
(310) 441-8600

Who in their right mind would pay those fukwits for the right to sing happy birthday in the first place.

"The song generates a ridiculous amount of money per year (estimates say around $2 million)"
That soulless shit has to stop. Via pitchforks and torches is cool with me.

Nigel
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DannyB (profile), 3 Jan 2013 @ 12:03pm

Re:
Would the amount of evidence matter?

The Author could produce the copyright registration.

The Author could produce evidence of the earliest performance and "fixed in tangible medium" which at that moment copyright exists.

The Author could possibly produce intermediate working drafts of music and lyrics. Recordings. If they are dated in a verifiable way, then better.

It would be interesting if one of the RIAA-holes or their shills were to try to claim copyright. How would one prove it?
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Anonymous Coward, 3 Jan 2013 @ 12:04pm

Re:
To be sung exclusively to the elderly or the terminally ill
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S. T. Stone, 3 Jan 2013 @ 12:06pm

Re: Flash Mob
I�ll get the Guy Fawkes masks.

�what? I like the idea, but not enough to risk a lawsuit when Warner identifies me via security footage.
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Anonymous Coward, 3 Jan 2013 @ 12:16pm

Re: Re:
Well if a company is claiming copyright, they should be able to produce a signed contract, either of assignment or employment assigning them copyright.
However for older works, this may be difficult, it got lost in an office move or something.
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Richard (profile), 3 Jan 2013 @ 12:17pm

The Russians
already have an alternative - Mnogaya Leta (Many Years).

It is well in the public domain.

Heard here http://www.youtube.com/watch?v=NU-Qe36GDPI
with introductory declamation by Boris Christoff.
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slick8086, 3 Jan 2013 @ 12:22pm

If this isn't the best evidence that copyright is broken i don't know what is.

Such a fundamental part of American culture, over 100 years old, and some one "owns" it? It is sickening.
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Trumpster, 3 Jan 2013 @ 12:29pm

You mean like this one?

http://www.youtube.com/watch?v=2f2PCWYAZQc
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Anonymous Coward, 3 Jan 2013 @ 12:30pm

Re:
Hey whats this American culture, it is also part of the culture on the this side of the pond. I don't know about down under.
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Gwiz (profile), 3 Jan 2013 @ 12:33pm

Happy Copyright to you
Happy Copyright to you
Sing this song until you're blue
Just make sure you pay me when you do
Happy Copyright to yoooouuu!
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Anonymous Coward, 3 Jan 2013 @ 12:37pm

Re: Re: Flash Mob
Well, if you're not up for supporting them making money off of the copyright of "Happy Birthday To You" then you'd kind of be shooting yourself in the foot (so to speak) by purchasing Guy Fawkes mask. Which I believe Warner gets a cut off the sale of here in the U.S.
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Anonymous Coward, 3 Jan 2013 @ 12:42pm

Re:
My entry:
Happy anniversary of your egress from your mother's vagina
I hope you're not squeamish
Have some damned cake.

AND THEN SOME MORE......
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akp (profile), 3 Jan 2013 @ 1:14pm

Re: Aqua Teen Hunger Force did it.
Yep... Spirit Journey Formation.

"Deep beneath the walls of tiiime...!"
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Comboman (profile), 3 Jan 2013 @ 1:25pm

Good Luck
If The Beatles couldn't supplant the Happy Birthday song, I don't give a bunch of random people on the internet much of a chance.
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Ray Trygstad (profile), 3 Jan 2013 @ 1:27pm

Just crowdsource a legal fight against Warner Chappell
I think a far better--and in the long run more valuable--alternative would be to fight the world's single most egregious example of copyfraud by having someone step up to blatantly abuse the alleged "copyright" and then crowdsource payment of their defense. I'd certainly donate. I am thoroughly sick of copyfraud.
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PRMan, 3 Jan 2013 @ 1:29pm

Re:
I'm pretty sure the EFF would help the winner of this contest against you.
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Richard (profile), 3 Jan 2013 @ 1:29pm

Title
The Lyrics to "Happy Birthday to You" consist entirely of its title. BUT Titles cannot be copyrighted. Therefore it follows that Happy Birthday to you cannot ever have been under copyright.
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Anonymous Coward, 3 Jan 2013 @ 1:33pm

It's time for a new copyright-free Happy Birthday song, so write one and place it under a copyright license!

Do not want. Even a license as otherwise permissive as CC-BY scarcely qualifies as "copyright-free". The license terminates if you fail to uphold the attribution requirement, and let's remind ourselves what that requirement is:

a. You may Distribute or Publicly Perform the Work only under the terms of this License. You must include a copy of, or the Uniform Resource Identifier (URI) for, this License with every copy of the Work You Distribute or Publicly Perform.
...
b. If You Distribute, or Publicly Perform the Work or any Adaptations or Collections, You must, unless a request has been made pursuant to Section 4(a), keep intact all copyright notices for the Work

Singing the new song? Don't forget to print out or link people to the CC-BY license, and also pass along notice of who holds the copyright! Otherwise you lose the license, and all of your permissions to copy, remix, and perform the song get retroactively removed. Awesome.
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Sabrina, 3 Jan 2013 @ 1:41pm

copyright law
I think our current copyright law is stupid. Copyright is a monopoly. Somethings shouldnit be copyrighted. What ever happen to creating works to be shared and for others to enjoy. I started a petition to try and limit copyright law at the whithouse.gov site. I would like to limit it more than what my petition says but wasn't sure if I could get enough signatures at the time if I did so If I can at least limit the copyright law in some way it would be nice. Here is the link if anyone is intrested. Please share it with others. http://wh.gov/UIW2
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I_am_so_smrt (profile), 3 Jan 2013 @ 1:43pm

Sto Lat!
Sto lat, sto lat,
Niech żyje, żyje nam.
Sto lat, sto lat,
Niech żyje, żyje nam,
Jeszcze raz, jeszcze raz, niech żyje, żyje nam,
Niech żyje nam!

http://en.wikipedia.org/wiki/Sto_lat
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jameshogg (profile), 3 Jan 2013 @ 1:44pm

Why bother trying to get the song into the public domain? Corporations will just buy it away from the public domain again.

Fucking leeches on the economy.
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dev, 3 Jan 2013 @ 1:44pm

help them enforce the copyright
If Warner successfully enforced the copyright of this song, every time it was sung, no one would sing it anymore. Our 'pirating' fuels its popularity.
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Anonymous Coward, 3 Jan 2013 @ 1:53pm

Re: Re:
CC-BY does not provide such protection. The Share-Alike licenses (CC-BY-SA, for example) afford the open licensing restriction on derivatives, but your scenario of "evil basterds" appropriating and locking down the work is exactly as possible with CC-BY as it is with CC0 or with no license whatsoever.
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Vidiot (profile), 3 Jan 2013 @ 2:00pm

Sing whatever lyrics you want
At big public functions... conventions and sales meetings... we've had someone ask honorees to stand and be recognized for their birthdays... and then we play a licensed recording of "Good Morning, Dear Teacher". And it's up to the audience which lyrics they choose to sing.
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Richard (profile), 3 Jan 2013 @ 2:03pm

Re: Sto Lat!
This seems to be the Polish version of "Mnogaya Leta" as quoted above.
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Overcast (profile), 3 Jan 2013 @ 2:04pm

Happy Birthday to you..
Warner Chappell screwed up the old tune.
Because of greed and control.
So no Happy Birthday tune for you.
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crade (profile), 3 Jan 2013 @ 2:11pm

Re: Re:
If they could do that, we wouldn't need the contest, would we?
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harbingerofdoom (profile), 3 Jan 2013 @ 2:12pm

happy happy birthday
happy happy birthday
happy happy birthday
now shut up and eat your cake!
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btr1701 (profile), 3 Jan 2013 @ 2:49pm

The horror...
A copyright-free version of Happy Birthday?

Mike, why do you hate America? And puppies?
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GMacGuffin (profile), 3 Jan 2013 @ 3:28pm

Our nuclear family song...
This is the birthday song my wife and I spontaneously wrote about 12 years ago at a diner (after the diner did their own self-advertising awful birthday song for some patron). It has spread pretty widely through family and friends.

Just clap your hands in time and sing-song a kinda tune of your choice:

It's your birthday, what the heck
Stick a pencil in my neck
Kill me now
Don't care how
Iiiiiiiit's your birthday.
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zeiche (profile), 3 Jan 2013 @ 9:28pm

The cake is a lie.
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Greevar (profile), 3 Jan 2013 @ 11:23pm

Re:
But the frosting is diet.
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Anonymous Coward, 4 Jan 2013 @ 1:27am

We don't need to pay 10k when we sing it at a party, so I doubt anyone will change the song.

It is ridiculous that Warner have the rights to such a basic, widely used song though. At 10k per usage I suppose they have placed it too low to justify hiring a lawyer to fight it.
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G Thompson (profile), 4 Jan 2013 @ 1:34am

Re: Re:
I keep hearing this in the voice of GLADOS with the statement right at the end after a pregnant pause (see what I did there) of "There is no cake"
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G Thompson (profile), 4 Jan 2013 @ 1:36am

Re: Re:
Yes here in Aust (and NZ) as well. though we and NZ don't pay squat to anyone for it since it actually is in the PD here ;)
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G Thompson (profile), 4 Jan 2013 @ 1:38am

Re: Re: Re:
Note: School kids also sing another version sometimes here

Happy Birthday to you,
you live in a shoe
You look like a monkey
and you smell like one too
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Ninja (profile), 4 Jan 2013 @ 3:52am

Now srsly. Let us put the thing inside our heads to work for a bit. Behold the mighty and creative lyrics!

Happy birthday to you
Happy birthday to you
Happy birthday dear Johnny
Happy birthday to you

A sentence you use every time you'll wish happy birthday for someone repeated 3 times and a small variation to add warmth and love. And this fucking dumb thing generates $2 million per year.

Gentleman, we are in the wrong business.
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Michael, 4 Jan 2013 @ 4:58am

Patent
Everyone is going to have to license my patent for:

"a system of singing a different song in place of a more common song to avoid the licensing fees associated with the more common one"
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Michael, 4 Jan 2013 @ 5:05am

Re:
Thank you for using our song!

We have noticed that you have published the lyrics to our ingenious and original song. It warms out heart to see one of our rich contributions to society being used and we rejoice in finding it.

Unfortunately, our records indicate that neither you, nor TechDirt, nor Google (through which we found this) has properly licensed the content above. To resolve this oversight, we are offering you a licensing fee based on $2000 per our estimation of the number of people that will read this post. Over the next 100 years, we estimate that an average of 10 people per day will read this post, so we will be sending you an invoice for the total of $730,000,000. We can set up a payment plan with the low interest rate of 72% APR if you are unable to pay in full at this time.

Thank you
Warner Chappell
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Michael, 4 Jan 2013 @ 5:28am

Re:
"We don't need to pay 10k when we sing it at a party"

Really? Damn. That was the second biggest expense at my son's last birthday party.
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G Thompson (profile), 4 Jan 2013 @ 8:34am

Re: Re:
The joke's on you

You forgot about the multiverse variable and could of sent that invoice for $730,000,000 times the infinite amount universes that are affected - less $1 for reasonableness.. lets not be too greedy

;)
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nasch (profile), 6 Jan 2013 @ 2:32pm

Re: Cultural Long Shot
But people in general don't relate to this, because you can sing Happy Birthday at a birthday party with no consequences. I don't even think you will run into trouble putting it on YouTube. It's only media companies and restaurant chains who are inconvenienced by it, so the public at large doesn't really care.
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