Happy Birthday And The Problem With The Copyright Office's 'Orphan Works' Plan
from the orphan-works-are-your-fault,-don't-blame-us dept
A few weeks ago, we wrote about the big ruling by Judge George King in a district court in California that Warner/Chappell does not hold a valid copyright in the song "Happy Birthday." The press ran with the story, with nearly all of the coverage falsely stating that the judge had declared Happy Birthday to be in the public domain. As we noted in our post, however, that was not the case. While the plaintiffs had urged just such a finding, Judge King noted that there were issues related to this that a jury would need to answer, and he would not go that far. Instead, he merely stated that Warner did not hold a valid copyright. Many people assume that this is good enough. The likelihood of some third party magically showing up after all of these years and not just claiming the copyright, but having enough evidence to prove it seems very slim. Glenn Fleishman has done a nice job writing up a detailed explanation of this copyright mess for Fast Company, in which he notes the "uncertainty is maddening."It's worse than that. As we noted in our original post, technically, this makes "Happy Birthday" an orphan work -- i.e., a work where the exact copyright status or owner is "unknown." Orphan works have been a big problem that the Copyright Office has been studying for some time. However, the solution proposed by the Copyright Office is ridiculous, and the case of Happy Birthday should demonstrate pretty simply why the proposal is broken.
The plan says that anyone who wants to make use of an orphaned work would have to meet six criteria to avoid possible liability:
Users must: (1) if sued for infringement, prove to the court by a preponderance of the evidence that they performed a good faith, qualifying search to locate and identify the owner of the infringed copyright before the use of the work began; (2) file a Notice of Use with the Copyright Office; (3) provide attribution to the legal owner of the copyright, if reasonable under the circumstances; (4) include a to-be-determined "orphan works" symbol with any public distribution, display, or performance of the work; (5) assert eligibility for such limitations in the initial pleading in any civil action involving the infringed work; and (6) state with particularity the basis for eligibility for the limitations during initial discovery disclosures.Now, let's look at this in terms of Happy Birthday. If you want to sing Happy Birthday, you would first have to conduct and document a "good faith, qualifying search to locate and identify the owner" of Happy Birthday before you sang it. You would then have to file a "notice of use" with the Copyright Office, telling the Copyright Office about this use of an orphaned work. Now, obviously, for most folks singing "happy birthday" at a birthday party, they're not going to do that -- and that's fine. After all, they ignored the copyright when many believed Warner/Chappell held a valid copyright.
But -- and here's the important point -- all of the "professional" situations where the song was used would almost certainly have to go through this process. Films that used the song wouldn't be able to get "errors and omissions" (E&O) insurance without first proving they made it through this process (and you need E&O insurance to ever get a movie released). Restaurants that wanted to sing Happy Birthday rather than their made up song would need to do the same thing. And they'd all likely have to hire lawyers in order to properly document the "search" and to file the notice with the Copyright Office. And very few people are going to want to go through that process. It may be slightly better than paying thousands of dollars to Warner/Chappell, but not much.
How is this solution possibly a "good compromise" on the issue of orphan works? How does adding such a burden, just so someone can sing Happy Birthday, possibly make sense?
Once again, the "problem" of orphan works is a self-made problem, created by copyright laws that automatically grant copyright to all new fixed works, rather than requiring registration in the first place. If it required registration, there would be some sort of record and paper trail of who owned the copyright and when it was valid. But in a world where everything gets copyright protection, we get a world with millions upon millions of orphaned works -- and if anyone who ever wanted to do anything with it had to go through the convoluted mess just to do something like sing Happy Birthday, the "answer" is no answer at all. It's just making a bad problem worse.
The way to fix orphan works is not to increase the burden, it's to fix a broken copyright system, and to require registration in the first place.
Bonus content: This doesn't fit directly into this post about orphan works, but this video by Vi Hart about the copyright on Happy Birthday is totally worth watching, presenting the issue from the perspective of someone knowledgeable about music theory, rather than copyright law, and showing yet another way in which the idea that Happy Birthday ever deserved copyright is a ridiculous idea.
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Filed Under: copyright, copyright office, happy birthday, orphan works, public domain
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Should be 28 years
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Re: Should be 28 years
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surely that should read:
'they ignored the copyright when Warner/Chappell SAID they held it and forced payment amounting to millions of dollars, none of which they should have collected and all of which should be returned to those the fees were collected from!!'
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No orphans
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Re: No orphans
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The idea is the owner is still entitled to something but it's not really worth suing over. The incentive is to keep the information current if the work is valuable.
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17 U.S. Code § 412
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Im not sure what copyright laws were a hundred years ago, but for a work to be covered under current life+70 wouldn't it have needed some kind of renewal?
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The creator may well be known - and perhaps known to be dead - without knowing who currently owns the copyrights. And that horrible mess is courtesy of copyright ownership being transferable.
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Sadly irrelevant to some degree, since many of the copyright changes have applied retroactively. That's part of the problem - works are created under a specific copyright agreement with the public, and then changed decades later when Disney or the RIAA decide they're not done making money yet, effectively ensuring that nothing new ever enters the public domain automatically.
Also, IIRC, part of the copyright here regards the lyrics, which are a more recent addition than the melody and are therefore less than 100 years old.
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It was fairly easy to lose a copyright prior to 1976, and the recent decision was analyzed under the 1909 Act.
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How about this. I hold the privileges!!! I even have a document that proves it (pulls document on old paper out of typewriter)!!! Anyone who sings Happy birthday owes me money.
[Good thing I had some blank old paper and an old typewriter lying around for this exact reason]
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Orphan works perfectly demonstrate the failure of current copyright law, and it's a problem that will only grow worse with time.
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Registration is absolutely something we need to start requiring again, but we've got to be careful about just how it's done.
We can't say that works only get copyrights upon registration; this would mean that works are in the public domain between creation and registration, which can be a substantial period of time. During that time, it would be difficult for authors to show off their work, such as to potential publishers, since without copyright, the publishers could just pirate the manuscript. Relying on trade secret protection in that interim period isn't good either, since it can be somewhat difficult to qualify, and it puts us into the realm of relying on states instead of having a single federal policy, which we all know is terrible from the 'common law' copyright mess we still suffer from.
Additionally, trade secrets don't have a built-in deadline, which could result in works being sat on instead of being published. Copyright seeks to incentivize the creation and publication of works, among other things; it doesn't do the public any good to have created unpublished works.
I think a better solution would be to grant copyrights upon creation, but to make copyrights for unpublished, unregistered works expire in a reasonable amount of time (since after a while, a manuscript pirate is more useful to the public than an author who never publishes), and to limit the viability of claims of infringement (e.g. not allowing striking similarity) as well as remedies and access to the courts. The copyright holder would need to register (which would be constructive publication) or publish and then almost immediately register, to get significant protection, ability to bring a suit in court for infringement, etc. While there might be one clock for term length that starts upon creation, it might be swapped for a different period of time once the work is registered, preferably with renewal terms that require additional filings to keep the registry fresh.
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During that time, it would be difficult for authors to show off their work, such as to potential publishers, since without copyright, the publishers could just pirate the manuscript. Relying on trade secret protection in that interim period isn't good either, since it can be somewhat difficult to qualify, and it puts us into the realm of relying on states instead of having a single federal policy, which we all know is terrible from the 'common law' copyright mess we still suffer from.
Why not just, you know... get it copyrighted?
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It might not be done yet. Some works take a long time to prepare. For example, George Lucas was said to be making minor changes (all for the worse, probably) to The Phantom Menace all the way to the very deadline when the movie absolutely had to go to the lab to have the prints made and shipped to theaters.
The author might also not have the opportunity; what about a television show which is transmitted live? A full copy can't even be fixed (a prerequisite for copyright) until it's over, by which time anyone with a video recorder has got copies of it. The registration will necessarily have to follow the creation and public dissemination of the work in this case.
The goal of copyright is to incentivize the creation and publication of works and to get them into the public domain as fully and as quickly as possible. Registration is good partly for the purpose of lowering the transactional costs of licensing (i.e. you can find the licensor because they have to keep their information on file and up to date), but also so that we can identify (well, so that we can let the authors identify) works that don't need copyrights as an incentive.
We don't have to be absolute hardasses about it though. If the amount of copyright we're prepared to grant is in fact a necessary incentive for an author, we ought to grant it to him; it's just in keeping with our own goals. If this requires cutting the author a little slack, that's not so bad.
Let's say that we expand the definition of publication to any sort of general public release of the work, including public performance and public display as well as the traditional offering of copies for sale to the public. Is it the end of the world to grant, say, an automatic copyright which terminates upon the earliest of either five years after creation, or thirty days after first publication anywhere in the world? And to only allow more time if the work is registered before the above deadline? And to retroactively treat the work as always being in the public domain if it is never registered, so that there are no possible lawsuits dangling over people's heads if the work doesn't get registered? And minimal legal remedies unless registered anyway, as an incentive to register?
I think it can be made to work, and it works better with the less than ideal realities of the business of actually creating works and getting them published.
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That could be tricky, but I think there would be a better way to deal with it. Like you can update the copyright registry with the completed work later. No extension on the date though. The problem with automatic copyright on unpublished works is that then we're right back to the orphan works issue. Under your plan, if you find something that doesn't have a copyright notice, you basically have to assume it's an unpublished work that's still under copyright unless you know who the author is, because it probably won't have a creation date. So lots of unpublished works would effectively be under perpetual copyright.
The author might also not have the opportunity; what about a television show which is transmitted live?
Just create a mechanism to register the copyright ahead of time and deposit a copy of it afterwards.
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I don't think that will be common. Remember, part of this idea is drastically expanding the definition of publication to simply be public availability, either authorized by the rightsholder or tolerated by them (leading to something like laches). So how did you find this work?
Was it on a publicly accessible website? Then it's been published, and might have a brief grace period from the date of publication, which you can surely wait out if it hasn't already elapsed. Was it in a box from a garage sale or something? Then it's been sold to the public and again, has been published. Did you inherit the manuscript? Then you ought to be able to track down the rights holder fairly easily. Did you break into the author's house and steal the MS? Then your having to wait doesn't particularly bother me, though as previously noted, if a work is sat on long enough by the rightsholder it may as well be pirated. I just guess that the MS pirates should be careful to figure out the right timing if they get into that line of work.
So lots of unpublished works would effectively be under perpetual copyright.
It's not perpetual. At worst you'd assume it was just created and you'd have to wait for the relatively short term for unpublished unregistered works to expire, or for the rightsholder to timely register, before you knew that you could or could not safely use the work. But as I said, I think it would be rare to find a mystery unpublished work that forced you to wait out the clock like this.
Just create a mechanism to register the copyright ahead of time and deposit a copy of it afterwards.
This presupposes a lot more professionality and organization on the part of authors than can reasonably be expected, in my experience. Let's say we have a street musician that plays original improvisations, but also is recording himself, so there is fixation. How many registrations should he prepare each day? How much will it cost him in fees before he is ready to deposit? If he reaches his limit, will he have to stop until the next day? If he doesn't reach his limit can he get a quick refund on the surplus registrations he filed in the morning?
And most importantly, why is he being effectively compelled to register works he may not care to register, because he had to register in advance?
Not putting the cart before the horse lets authors decide whether or not to register works once they have the works at hand.
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You would have to document when you found it in some legally sufficient way, and hang on to the documentation for the copyright period. It would be much simpler if you knew that anything not registered isn't copyrighted.
This presupposes a lot more professionality and organization on the part of authors than can reasonably be expected, in my experience. Let's say we have a street musician that plays original improvisations, but also is recording himself, so there is fixation. How many registrations should he prepare each day? How much will it cost him in fees before he is ready to deposit?
I don't really care. If registering isn't worth the trouble or money for him, then don't do it. If he expects to make enough money off the copyrights to make it worth it, it's up to him to figure out a way to make it work. The purpose of copyright isn't to make creators' lives easy, it's to incentivize them. The system is only failing if the musician stops playing or recording because of the copyright rules. If he decides not to apply for copyright and continues making music anyway, that's fine.
And most importantly, why is he being effectively compelled to register works he may not care to register, because he had to register in advance?
He's not compelled to do anything. And I still don't see the problem this automatic copyright for unpublished works is supposed to solve. It's too inconvenient to register something when it's made? I really don't get it.
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No doubt, but I fear that requiring a sea change to the business side of the arts and publishing would not produce the sort of public benefits that we want out of copyright. After all, we don't want to provide just any old incentive, we want to provide the incentive that, together with other features of the copyright system, will produce the greatest overall public benefit.
The purpose of copyright isn't to make creators' lives easy, it's to incentivize them.
The harder it is for them to get and enjoy the benefits of a copyright, the less of an incentive it is. Personally, I think that we ought to make it as easy as possible to get a copyright which provides significant protection against the world, so long as it is not automatic. Given the realities of the publishing business, a copyright system designed with a pragmatic attitude will, I think, also need some form of automatic copyright, so long as it is quite weak and perhaps not quite viable against the world. And do remember, what I propose is weaker than the pre-1978 Copyright Act days, when federal copyrights were required upon publication (although via notice, not registration), but relatively strong common law copyrights were in place before publication.
He's not compelled to do anything.
You suggested that the musician register before he created the work, and that all that had to happen after creation was the deposit. This suggests that he will have already done his filing (for an unnamed composition, I guess) and paid his fee, and the copyright attaches instantly upon the creation and fixation of the work later in the day -- whether the musician wants it to or not, with regard to that work.
That is, if he thinks he might make ten new songs today, he files ten registration applications and pays ten fees. If he doesn't, he risks the work not being copyrighted. If he does, the works all now get strong protection, even if, upon reflection, the musician would've preferred to only register one of them. Plus, he isn't incentivized by copyright (if it matters) to make more than ten songs, because he knows that eleven and up will be in the public domain.
So what you're really accomplishing is to incentivize overprotection, while simultaneously throwing enough of a hurdle into the process as to not incentivize creation very well. It just seems to be a bad idea to me on all levels.
I'd rather the street musician create and fix the new improvisations, and then because these works were created, fixed, and published (using the broad new definition of publication discussed above) simultaneously, have maybe 90 days or so to choose which of them to register, if any.
Meanwhile, an author who doesn't create, fix, and publish simultaneously has more time to plan; let him have a year or five or something to get the work in the condition that he's happy with, and to shop it around to various publishers. Depending on what it is, it might take a while. Meanwhile, the copyright here is really only meant to deter pirates who are in the industry, not the general public, who aren't particularly harmed by the copyright at this point because the work is unavailable to them anyway. Eventually the author registers, which would be constructive publication, or publishes, and gets a mere 30 day grace period to register. Or, to encourage him to fish or cut bait, the weak copyright for the work expires after a modest period of time, allowing the MS pirates to go ahead and help the public out.
Fundamentally, you have to remember, while the copyright system is meant to benefit the public, there is nothing wrong with authors managing to get some ancillary benefits from it themselves, and since we're trying to exploit authors by getting them to do things for us, it behooves us to make it easy and attractive for them to dance to our tune. I'm reminded of the Temple Grandin movie in which she observes that cattle don't like turning 90 degree corners which made them agitated and difficult to control in stockyards; she designed a stockyard that used curves that the cattle found more to their liking, which helped humans manage them better and more efficiently.
So long as it is good for the public, it's fine to do things that are good for authors. Just gotta keep the priorities straight is all.
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If I had to register each website article and its updates individually, that's going to make it way too expensive.
Now, if you're talking about free online registration, that makes much more sense.
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Absolutely not. We've seen what happens with making things free online, both with spam email and also shotgun DMCA takedown notices.
Copyrights are a business matter, and deciding whether or not to register is a business decision. It should absolutely cost money. Not much money; I'd be happy with just a nominal dollar. It only has to be enough to get the rights holder to stop and think whether or not they really want a copyright on a particular work. In the vast majority of cases, it'll be no. Once in a while, it'll be yes. Whichever way they decide, it's good for me, but if it's free there's no need to think; you'll get a flood of automatically generated registrations simply because it's free and rights holders might as well be better safe than sorry.
Now, for something like a website or periodical of many articles, or a whole day's worth of snapshots from a photo shoot, or something, I'm sure some sort of group registration system -- which already exists, btw -- can be used. But at a certain point, it's best if people who don't care about getting a copyright on a work can decide that even the most trivial of hurdles to getting one, like a $1 fee, is too much, allowing the work to enter the public domain straight away. Like comments to articles on websites, like these. I wouldn't pay a dollar for a copyright on anything I've ever posted, so why should I get protection -- which is valuable, and which impoverishes the public domain -- for less?
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Value add on
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Proposed Symbol
© is for copyright and ℗ is for phonogram (sound recording), so (OW) is for orphaned work. And everyone said, yes, that's about right.
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I forsee a new job, documentarian, one who sells packets of the same documented research over and over again to those that want to use orphan works. Maybe you can pick up a packet at your local office supply store next to generic lease agreements and wills.
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They're both problems. Even if the term were up to 28 years, if you can't figure out when it was created, you may not know if it's copyrighted.
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Actually the "Happy Birthday" problem sent registration
That's because the lyrics to "Happy Birthday" are still in copyright if and only if:
They were NEVER published with proper permission prior to 1923.
They were published in 1923 or later, in a collective work (a songbook), that was itself copyrighted.
That copyright was renewed.
Furthermore, the legal owner of the copyright in 1935 can't be the likely author, Patty Hill, because she (apparently) renounced her rights in that year.
The work is orphaned because to prove its not in copyright, one has to search through every copyrighted work that could potentially contain it, and the registration data doesn't help to narrow tha search. Furthermore, since some of the depository copies at the Library of Congress have gone missing in the near-century since registration, one also has to track all the missing copies to search.
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Who Do You Ask?
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Yes and no
They way to fix the orphan works problem does involve increasing the burden, but not in the way the Copyright Office is suggesting.
Rather the burden needs to be increased for would-be copyright holders, and decreased for the public. Registration needs to be mandatory, so the public doesn't have to go on some stupid hunt for clues, trying to find out who owns a given copyright and if it's still valid.
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This is all pretty obvious and you must know this, yet you said it anyway. So all we've learned here is that you're dishonest. That's not news, but gosh you're dumb.
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...either that or the quality of our trolls has gone way down again.
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Nope. Wasn't me.
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