My mom sent me this article about the Happy Birthday Song. For those of you not in the know the happy Birthday song is apparently copyrighted by Warner/Chappell Music. They charge everyone in the film and TV industry to use the song, to the tune of $2 million dollars a year. Everyone agrees that they have a huge stake in keeping the song out of the public domain for the remainder of the copyright term, which should expire in 2030. (Unless like Disney they can convince the courts to extend the term)
Unfortunately for them a film maker who paid a $1500 licensing fee to Warner for use of the song has sued, stating that Warners claim of copyright isn’t valid and is seeking to force Warner to pay back the millions the company has made over the course of the license. The evidence is in favor of the filmmaker. People have been pointing out for years that the sisters who supposedly wrote the Happy Birthday Song, didn’t create either the music or the lyrics, and even if they wrote the song “Good Morning to You” which plays to the happy birthday tune, there is evidence they only wrote the lyrics not the actual music. Also there’s evidence if the sisters copyright did exist, it would have expired in 1921 and be a lot more limited in scope than Warner currently claims.
Warner’s defense is that:
“Even if the plaintiffs show that the lyrics were published elsewhere, “this would not show that the author of the lyrics copyrighted under certificate E51990 copied those lyrics from somewhere else,” argue Warner’s lawyers. “Copyright law requires originality, not novelty.”
The web says originality means “the quality of being novel or unusual.” and novelty is “the quality of being new, original, or unusual.”
If the definition of these words is correct the lawyer basically just said “Copyright law requires it be unusual, and it was usual.” After the first lawyer just got through telling the court that the song wasn’t unusual at all, in fact it was quite common place. I’ll admit he sounded very smart saying it but a pithy quote is does not make a good argument it just makes a good sound bite.
Perhaps the Warner lawyer actually meant that just because other people were singing the words and using the music it doesn’t matter because the two sisters were the first people to claim copyright on they song? In that case Warner would be correct in the eyes of the law.
Anyway the whole things stinks. I’m glad I’m not the judge in that case.