Warner Music's Response To Evidence Of Happy Birthday In The Public Domain: Who Really Knows Anything, Really?

from the classic-misdirection-fud dept

Wed, Jul 29th 2015 12:46pm — Mike Masnick

Earlier this week, we wrote about fairly damning new evidence that almost certainly shows that the song "Happy Birthday" is in the public domain, and not, as Warner Music's Warner/Chappell claims, still covered by a copyright that it holds (and ruthlessly enforces). The evidence was in the form of a 1922 songbook that published the music and lyrics to Happy Birthday, noting that it was via "special permission through courtesy of the Clayton F Summy Co." The Summy company is who registered the copyright in 1935, and which Warner eventually bought. Warner has long argued that there was no pre-1935 publication. As the lawyers for the plaintiffs ("Good Morning To You Productions" -- who are making a documentary film about the song) pointed out, the publishing of the song and lyrics in 1922 without a copyright notice pretty clearly establishes the song is in the public domain. Even if there were a copyright on the original songbook, it would have expired.

It seemed pretty damning, but Warner/Chappell has quickly responded by basically trying to muddy the waters with a "well, who really knows what 'special permission' really meant" line, along with lots of other FUD about how Summy wouldn't have even owned the copyright at that point in the first place. Basically, Warner is just going to claim that none of this matters for as long as it possibly can. Watch the tap dancing:

Plaintiffs instead assert that it was Summy that authorized the 1922 and 1927 publications. Plaintiffs base this on the one-line statement that The Cable Company included in The Everyday Song Book. But that statement does not say what the “Special permission” was for—was it for Good Morning to All only? Was it for that work in combination with the Happy Birthday lyrics? The statement also does not say when such permission purportedly was provided or any other facts about that would show authorization divesting the Hill Sisters’ copyright.

Let's see just how much we can confuse everyone by twisting this into knots. The longer we keep up the illusion, the longer people have to pay... so it's worth it...

Plaintiffs’ evidence does not show the consent of the copyright owner. Plaintiffs argue that, because The Cable Company’s 1922 publication contained the statement, “Special permission through courtesy of The Clayton F. Summy Co.,” the 1922 publication must have had the necessary authorization from the copyright owner to divest the common law copyright.

In 1922, however, the Clayton F. Summy Co. (“Summy”) did not own the copyright to Happy Birthday to You! Summy likewise did not own the copyright to Good Morning to All. In 1922, the copyrighted work Song Stories for the Kindergarten, which contained Good Morning to All, was in its renewal copyright term.... Jessica Hill, who had inherited part of Mildred Hill’s interest in the renewal copyright term of Song Stories for the Kindergarten, timely filed a registration for the renewal term on September 3, 1921.... There is no evidence that the Hill Sisters (Jessica or Patty) granted anyone the right to publish the Happy Birthday to You! lyrics until 1935. The evidence instead shows that Summy sought and obtained a license to publish the Happy Birthday to You! lyrics from Jessica Hill in 1935.... Summy would not have had to secure a license from Jessica Hill if it already had the rights to Happy Birthday to You! or if the work had fallen into the public domain.

This seems like a lot of complexity for the sake of complexity -- just to come up with some sort of argument for why a clearly public domain work might not be in the public domain. Now we wait for the judge's ruling on all of this...

Warner HBD Oppo (PDF)Warner HBD Oppo (Text)

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Filed Under: copyright, happy birthday, public domain
Companies: warner chappell, warner music

39 Comments

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Mason Wheeler (profile), 29 Jul 2015 @ 12:54pm

Hill Sisters, eh?

I can't help but wonder if they're related to Harold Hill, the infamous musical con man, whose story is related in the 1962 Warner movie The Music Man? It seems appropriate enough, seeing as how they're trying to pull a major music con here...
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Anonymous Coward, 29 Jul 2015 @ 1:09pm

So it was copyrighted before it was copyrighted, but the first copyright doesn't count for the timing of the second copyright, so give us money.
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Anonymous Coward, 29 Jul 2015 @ 1:13pm

This seems like a lot of complexity for the sake of complexity -- just to come up with some sort of argument for why a clearly public domain work might not be in the public domain. Now we wait for the judge's ruling on all of this...

Translation: I already decided that this work is in the public domain, and while I can't comment on the substance of the defendant's opposition, I'll just declare it to be wrong.
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Anonymous Coward, 29 Jul 2015 @ 1:18pm

Response to: Anonymous Coward on Jul 29th, 2015 @ 1:13pm
Moron. Read and comprehend the article.
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Anonymous Coward, 29 Jul 2015 @ 1:22pm

Re:
The question to be answered is was it made available to the public in 1922, in which case it is long out of copyright, or if the copyright notice was not attached, it was never protected by copyright.
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Anonymous Coward, 29 Jul 2015 @ 1:22pm

Now would there be a chance that any liability for fraud from falsely claiming ownership of the song for the the past few decades? Seems that dragging them to court, and if possible in front of a jury, would be a good idea for those threatened and had to pay up in the past.Knowing nothing else about the current state of copyright abuse, I cannot imagine a jury member being able to side with a company that kept the happiest song they heard growing up locked away for decades, forcing such terrible replacements such as those you hear at restaurants. Dependent upon the loss of the B.S. copyright.
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Anonymous Coward, 29 Jul 2015 @ 1:24pm

Common Law Copyright?
So, Warner is claiming it was covered by some kind of "common law copyright" before 1935 and then federal copyright after that? Uh, yeah, right.
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Anonymous Coward, 29 Jul 2015 @ 1:33pm

"Warner Music's Response To Evidence Of Happy Birthday In The Public Domain: Who Really Knows Anything, Really?"

When even those responsible for undemocratically writing these stupid laws (Warner Music) are so confused themselves by what they enable that they don't even know how to interpret a situation that should say something.

and it's a travesty that Happy Birthday is still not clearly in the public domain (by now).
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OldGeezer (profile), 29 Jul 2015 @ 1:40pm

So, if is proven in court that the crappiest song ever written has been public domain since at least 1922, does that mean Warner will have to refund everyone they defrauded? Perhaps a class action suit that retroactively includes everyone who paid fees for it is in order.
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Charles (profile), 29 Jul 2015 @ 1:40pm

Hands up! Step away from the cake!
As with many other topics of discussion why is there no public outrage over a company claiming ownership and denying use of without license the iconic song Happy Friggin' Birthday. Since the song is sung at practically every private birthday party, at least here in the States, 'Merika has long since achieved Nirvana- every citizen a criminal.

Hopefully that will no longer be the case.

Happy Birthday to You.
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Mason Wheeler (profile), 29 Jul 2015 @ 1:41pm

Re: Response to: Anonymous Coward on Jul 29th, 2015 @ 1:13pm
Don't feed the trolls. Just click Report and move on.
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alternatives(), 29 Jul 2015 @ 1:49pm

Re: Response to: Anonymous Coward on Jul 29th, 2015 @ 1:13pm
Moron.

Then why not actually explain the situation VS what you did? Show us how smart YOU are.
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Anonymous Coward, 29 Jul 2015 @ 1:50pm

Re:
I would suspect it would be the same as pretty much any other copyright or patent troll. Those who paid up rather than litigate are shit out of luck.
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Anonymous Coward, 29 Jul 2015 @ 1:50pm

Re: Hands up! Step away from the cake!
Because Most people don't give a crap what the status of the copyright is. They're going to go on merrily singing it at every persons birthday and paying a dime to nobody.
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Baron von Robber, 29 Jul 2015 @ 1:56pm

Re: Re: Response to: Anonymous Coward on Jul 29th, 2015 @ 1:13pm
Well you see, those nasty pirates saw the 1935 publication that was copyrighted, copied it and time traveled to 1922 and 1927! Those time travelling pirates ruined Happy Birthday To You for everybody for all times! Devious they are.
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Anonymous Coward, 29 Jul 2015 @ 2:01pm

Re: Common Law Copyright?
In 1834 the Supreme Court ruled in Wheaton v. Peters, a case similar to the British Donaldson v Beckett of 1774, that although the author of an unpublished work had a common law right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.

-Wikipedia
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Anonymous Coward, 29 Jul 2015 @ 2:03pm

Happy Birthday to sue
Happy Birthday to sue
if it quacks like a duck
we'll sue it like one too

Happy Birthday to me
Happy Birthday to me
I screwed the public domain
and all of you

I'm sure they are singing all the way to the bank... 10M gross @ 2M net for the last 80 years, I could retire on that
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Anonymous Coward, 29 Jul 2015 @ 2:28pm

"well, who really knows what 'special permission' really meant"

according to Warner, it meant it could rip people off for a couple of million every year, suing those who refused to pay into oblivion, on occasions. so now they aren't sure what the phrase meant, i assume they are going to give back all the money they have gotten from this "who really knows what 'special permission' meant" because they shouldn't have taken it, let alone sued for it??

i'll believe that when i read it here, backed up by evidence from some who were refunded!! guess i'll have a long wait, huh!!
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Anonymous Coward, 29 Jul 2015 @ 2:50pm

woot
Now we have a list of lawyers to bar grieve. Filing bogus paperwork with a court.
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Anonymous Coward, 29 Jul 2015 @ 3:07pm

Re: woot
"Filing bogus paperwork with a court."

That almost never get punished. It's almost like a national pastime for lawyers.
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David, 29 Jul 2015 @ 3:13pm

Huh.
If there is no reliable evidence regarding the intentions and legal bearings of the original authors available any more, there is no point in some party being allowed to sue over it.

Obviously, the situation is so far remote from the authors' intentions and expectations (actually, any posthumous change in copyright legislation is a perversion of the original author's reasonable expectations) that the ongoing licensing business cannot in good conscience be called anything but a scam.

Of course, that is not constrained to "Happy Birthday". While the circumstances here are glaringly egregious, they are quite par for the course: a corporational lottery with payouts absolutely unaccountable to actual relations with the author.
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OldGeezer (profile), 29 Jul 2015 @ 3:20pm

Re: Re:
Yeah, you are probably right. It always cracks me up when NewEgg kicks some troll's ass after even companies who have the resources to fight them have paid up. You would think the trolls would eventually learn not to fuck with NewEgg!
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Anonymous Coward, 29 Jul 2015 @ 3:35pm

Re: Re: Common Law Copyright?
That wouldn't exclude the fact that it was first published before 1935, though. They'd have the right to control it until the first publishing and after that copyright law would take effect, right? The fact that it is published before the 1935 date would still count in the argument you raise. Otherwise, what accounts for the 13 years in between? (I acknowledge it's entirely possible other laws cover it)
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Zem, 29 Jul 2015 @ 4:10pm

Special Permission
I bet warner that the judge has a powerful tool available to decide what "special conditions" mean. It's called a dictionary.
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Anonymous Coward, 29 Jul 2015 @ 5:05pm

Re:
How about a class action suit in the name of everyone who's ever had a birthday?
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Anonymous Coward, 29 Jul 2015 @ 5:43pm

Re:
Log back in, antidirt! Or is that too much butthurt for you?
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ltlw0lf (profile), 29 Jul 2015 @ 7:03pm

Re: Re: Re:
You would think the trolls would eventually learn not to fuck with NewEgg!

Greed. Pure, unadulterated greed mixed with crony-capitalism. (Not that I have a problem with greed, it is what makes us work our asses off in pursuit of greater things so long as it is tempered with hard work, which Warner doesn't actually do here.)

Trolls going after newegg have bought the laws that allow them to do no work and yet collect millions off of the backs of others, so in their mad pursuit to have it all their blind greed gets them to bite off more than they chew.

In the immortal words of a good movie, "Sometimes you get the shark, sometimes the shark gets you." Most animals realize that there is a point in which you should stop, not go any further, at risk to your life or future profits. They think they're on top of the food chain and are blind to the companies who actually want to fight back.
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PaulT (profile), 29 Jul 2015 @ 11:40pm

So.. they admit that it's idiotic to insist that Google and others can easily program an algorithm to determine whether something is infringement because it's just that easy? Good to know.
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PaulT (profile), 29 Jul 2015 @ 11:44pm

Re:
"I can't comment on the substance of..."

...any article on this site so I have to make crap up and attack people instead of addressing their actual positions with anything like a coherent counterpoint.

We know, believe me, we know.
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Anonymous Coward, 30 Jul 2015 @ 12:24am

Re:
No, the work is in the public domain as the melody was already in the public domain (being published in a hymnal in the mid-19th Century), and the lyrics are in the public domain for not having a copyright notice (in accordance with the Copyright Act 1908).

That's based on the evidence in this trial, thus far.
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Anonymous Coward, 30 Jul 2015 @ 2:11am

Re: Re: Re: Common Law Copyright?
"They'd have the right to control it until the first publishing and after that copyright law would take effect, right?"

Only if it was published with proper copyright notice and copies sent to the Library of Congress with the proper paperwork.
Leave out ANY of those factors, and according to the copyright law of the era, it's PD!
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Rich, 30 Jul 2015 @ 8:54am

Why is Warner making assertions about common law copyright? I thought that didn't come about until 1976.
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tqk (profile), 30 Jul 2015 @ 3:33pm

Re: Response to: Anonymous Coward on Jul 29th, 2015 @ 1:13pm

Translation: I already decided that this work is in the public domain, and while I can't comment on the substance of the defendant's opposition, I'll just declare it to be wrong.

Moron. Read and comprehend the article.

In his/her/its defence (Devil's advocate mode), that's not easy. US copyright law is a lot like "Romans stirring entrails" stuff.

I think it's ridiculous that anyone can pull in two mil per year for decades (almost a century!) over what's pretty much a folk song, with multiple instances of state copyright law intertwined with federal US copyright law as controls over the situation. What a friggin' mess! It's public domain, ffs, and should have been recognized as such a hundred mil or so ago, yet the courts still entertain the idea that this is not settled? Gimme a break!

To the grandparent poster, I think (contrary to your snide whispers to the contrary) Mike's conclusion re: this situation was clear long, long ago. You are casting wholly unwarranted aspersions. I can only assume you're being paid to do so, or you're just an amateur wannabe Imaginary Property maximalist. You're not very good at this (TD sees right through you and everything you try to do), and I think you ought to look around for another hobby. I suggest Fark.com or Onion.com would be endlessly entertaining for such as you. Perhaps RT and Stormfront would welcome such as you too.

Have a marvy day.
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tqk (profile), 30 Jul 2015 @ 3:41pm

Re: Re:
... or if the copyright notice was not attached, it was never protected by copyright.

That was my take on the previous article.

It's too bad that law isn't like software. "Replace that disgusting, buggy crap" isn't considered an option. Instead, they just bolt on more crap hoping that'll fix the existing crap and it never does.
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tqk (profile), 30 Jul 2015 @ 7:07pm

Re: Re: Re: Re:
Not that I have a problem with greed, it is what makes us work our asses off in pursuit of greater things ...

Uh, speak for yourself? Of course.

I work value for value. I'm not trying to take advantage of clients/employers. I generally under-bill. I enjoy the opportunity to work that employers/clients offer. You got a problem? I love fixing problems! I've done gigs with people who were pulling down three times what I was getting. I thought it a bit odd, but not my business if the employer was resigned to pay it. Meh.

Greed's way overrated. It doesn't encourage callbacks. YMMV.

Then again, fixing problems so they never come back doesn't encourage callbacks either. Damn.
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GEMont, 30 Jul 2015 @ 9:55pm

Re: Hands up! Step away from the cake!
"...why is there no public outrage ..."

Well, did you hear anything about this on the regular Television NEWS?

Was there a large discussion on the popular Radio??

Did the newspapers print all the details of Warner's scam and the tons of cash they've stolen over this phony copyright trick?

Nope.

Heard about it online, right.

Probably right here on techdirt, correct?

Understand yet why there is no public outrage or outcry??

When a foreign power, or fascists, take over a country, the first thing they do is secure the country's media outlets and replace all the NEWS pertaining to current events, with propaganda, phony NEWS-tainment stories, and dreck/drivel.

---

---
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OldGeezer (profile), 31 Jul 2015 @ 9:16pm

Re: Re: Re: Re:
I thought the whole idea of trolling was quick easy settlements. Companies know how expensive it is to fight back even when they know the claim is a load of crap. The trolls then rake in big bucks with minimal legal fees. Why would they go after NewEgg when they know they will likely lose millions even they win? There are so many easier targets.
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2crudedudes, 11 Aug 2015 @ 4:44pm

"This seems like a lot of complexity for the sake of complexity -- just to come up with some sort of argument for why a clearly public domain work might not be in the public domain. Now we wait for the judge's ruling on all of this..."

This isn't "complex" at all. It is very clear that Summy couldn't have owned the copyright if the Hill sisters did.
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Anonymous Coward, 2 Sep 2015 @ 6:33pm

Published in 1919
See

Rock Island Argus. (Rock Island, Ill.), 06 Oct. 1919. Chronicling America: Historic American Newspapers. Lib. of Congress.

Page 12, column 2

The newspaper published the exact words of the song.
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