Copyright absurdity: Happy Birthday to You

I do not know why Senate Republicans are so responsive to Hollywood, and the recording/publishing industry. First we got term extension, adding 20 years to an already more than adequate term. (Upheld by the Supreme Court in the Eldred case.)Then we endured the Uruguay agreement where most foreign works published in the U.S. were put back under copyright protection. Then we were blessed with the La Cienega provision, which assured that all songs first published as recordings remained protected and were extended to benefit the publishing industry. Now Senator Hatch has announced his stupid "hack the copyright bandits" proposal. (I actually used to respect him.) In searching for public domain music for my own use, I learned that a copyright is asserted for the ubiquitous Happy Birthday to You. This is the most absurd assertion of copyright protection I have encountered in my quest. I compiled what information I could, related to that song, to negate the copyright. My blog gradually became an editorial. I have contributed it to the Internet community. Please consider and post your comments.

I read your bio indicating that you are/were an attorney. Therefore, you should be able to see that the "argument" in my article regarding Happy Birthday has absolutely nothing to do with whether or not term extension is/was legal. It has to do with the fact that 90% of that song (Good Morning to All) became public domain decades before 1996. The other two words of the lyric ("Happy Birthday") became public domain by the fact that they were published in context with that song by 1915, and several publications during the 1920's became PD upon publication without copyright notice. No author was ever identified for the "Happy Birthday" adaptation. I could change two notes of a Bach cantata, and register it, is that valid? Are you contending that all previously published folk songs are under protection now because no author is known? Nope. Anyway, the Hill's song "Good Morning to All" exercised its proper term of protection. You see, it has nothing to do with Eldred.

POSTSCRIPT FOR "EXPOSING HAPPY BIRTHDAY"
by the author

Whether or not Happy Birthday to You is public domain, the original song Good Morning to All is without question public domain. (It even was when Stravinsky wrote his version.) Even if the Hill's themselves had written, published, and registered the happy birthday version in 1935, that does not affect the public domain status of the earlier authorized version of Good Morning to All. Anyone else can write their own version based upon Good Morning to All. Good Morning to All is public domain no matter what setting you play it in, and just that fact is news to many people.

Common Law copyright: Good Morning to All (which comprises the majority of the song Happy Birthday to You) was published with consent of the author, and since the Hill's or Mr. Summy DID NOT pen the words "Happy Birthday to You" there is nothing for common law to protect regarding them.

If the added authorship by the anonymous person who wrote the Happy Birthday version is not considered to have been published in 1915 or in the '20's, and Mr. Summy published his version based upon knowing that version, then he has infringed upon the anonymous person's common law copyright also.

The lyrics "Happy Birthday to You" were published prior to use of them on stage and in telegrams. (Which would not have been publication.) Mr. Summy would have a valid copyright if he had taken the anonymous lyrics and put them to the tune himself. He did not; he took previously published material (albeit from an infringing combination of material) and registered it.

Scenario: If there had been anonymous lyrics published in a 1915 book that were completely different from Good Morning to All's lyric's in all respects except the meter, and at the top of the page, is printed "sing to the music of Good Morning to All" that would not be an infringement as none of Good Morning to All was republished. Mr. Summy could not take that as his own, even if judged to be public domain. The only difference in that scenario and this situation is that the Hill's original song was republished as a result of the combination. The Hill's had the right to determine first publication of THEIR material - what someone else authored, whether it infringed on the original or not, does not become the property of the Hill's. The 1909 law or current law doesn't say that.

That would mean if someone created a parody of a song, like "Wierd Al" does, and did it without permission, that the original song owner would by default own the parody too, even where such added material is substantially greater than the original song. Of course, if published, the original owner could stop further publication, have Al's CD's impounded, and collect damages. As far as I know, acquisition of rights to any new material in the infringing published variation is not a remedy.

The Hill's or Mr. Summy could have taken public domain or anonymous lyrics and added them themselves, but they did not. The changed words NOR the idea to combine them with the original melody were authorship by the Hill's, thus able to be registered. Whether the new material was two words as it was, or an entire public domain encyclopedia, the Hill's cannot claim ownership of what they did not author: the two words, or the idea to combine them. (You cannot copyright public domain material whether two words or an encyclopedia.) The Hill's could not copyright the combination (whether infringing or not) as they did not first combine the words and publish it.

The main point is that Happy Birthday to You was not *original* to the Hill's or Mr. Summy in 1935. That is an important principle of any copyright law. And even if the court had the authority to grants the [EXCLUSIVE] rights to an unoriginal bit of authorship to Mr. Summy, the earliest publication I know of was 1915. Current statutes imply that both Good Morning to All and the added material published in 1915, would now be public domain.

I'm not even sure that the court even knew of earlier publications that were similar to Good Morning to All: Happy Greetings to All, 1858, Good Night to You All, 1858, A Happy New Year to All, 1875, Happy Greeting to All, 1885. Notice a pattern here? i.e. folk song. There may be even more previous versions that could be located, I don't know.

According to an article reprinted by Katzmarek, Ronald H. Gertz, Esq., apparently President and Founder of Music Reports, questioned the validity of the copyright as cited in that article. Anyway, it is not my job to argue this case. IANAL. I'm only reporting my understanding of the situation. It would be up to an interested lawyer to develop an argument supported by any case law that would bear upon the 1909 Copyright Act, the 1934 case, and any recent law or uncovered facts that would affect it.

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