Monday, May 05, 2008

Happy Birthday Now Pay the License Fee

I confess to vastly preferring the Beatles' You Say its Your Birthday to the traditional Happy Birthday. (Here is a link to the Beatles singing the traditional song, though). Nevertheless, for copyright geeks, the traditional Happy Birthday has provided fodder for what all that is wrong with copyright. Now, Professor Robert Brauneis of George Washington Law School has blessed us with an exhaustive treatment of the song. Available here on ssrn, the article is entitled "Copyright and the World's Most Popular Song," Professor Brauneis gives us 67 and a half pages of history of the song and the copyright issues surrounding it. He has also generously provided a an amazing resource -- a website hosting over a hundred documents relating to the song:

The article is a tour de force of historical research as well as a probing inquiry into how copyright works that have fallen into the public domain can still command serious income through the inability of others to spend the time and money to track down the provenance of the claims to copyright in them. For those interested in the economic effects of term extension, here are some statistics Professor Brauneis offers: "In the late 1940s and early 1950s, the song generated revenues in the range of $15,000 to $20,000 per year. By 1960, the figure was closer to $50,00, and by 1970, over $75,000. But the really dramatic increase in revenue came in the 1980s. By the early 1990s, the song was generating over $1 million per year, and by 1996, reported Forbes magazine, it was 'pull[ing] in slightly less than $2 million a year.'" The Sony Bono term extension did not occur until 2 years later, 1998, while Happy Birthday, then known as "Good Morning to All," was first published in 1893, 115 years ago.


Christopher Fulmer said...

The interesting thing about this is the sheer amount of effort it takes to determine the lineage of the copyright to this one song. The ownership of orphan works is presumably even more complicated.

If there was ever a case to be made for a legislative solution to orphan works, this is it!

Anonymous said...

Interesting article. This post is in response to Chris' posting about the amount of effort it takes to determine copyright lineage.

One of the things that occurred to me when I read this is that there seems to be a hole in the copyright system, related somewhat to the lack of a registration requirement. The other forms of federally protected intellectual property -- patent and trademark -- not only require registration, but also some level of pre-protection vetting.

(Given the seemingly interminable slog to the respective presidential nominations, I shudder at using "vetting," but unfortunately that's what first came to mind.)

Copyright, on the other hand, does not require registration, no longer requires publication, does not require any independent assessment of validity (at least not through a federal office), and no longer requires notification (i.e. the copyright symbol).

Together, those realities seem problematic in a digitally networked environment (DNE), particularly the lack of required registration. Since virtually everything seems to be "born digital" (and, barring some unusual circumstances, presumptively eligible for copyright protection), sent digitally, easily reproducible in a digital format, it seems everything in a DNE invokes copyright and by extension, a potential copyright infringement.

Sure, the Act provides for exceptions/limitations, but those seem not to get traction because a DNE (among other factors) seems to foster an extreme (and perhaps irrational) desire for control by those entities or people that control valuable copyright portfolios.

It seems that given the networked environment we live in now and the nature of information creation and distribution, a robust copyright registration system is needed now more than ever, regardless of what treaties or trade agreements may require or allow.