Archive for the ‘Copyright’ Category

Lamps, Belt Buckles, and Hookahs — the Limits of Copyright Protection

Friday, January 31st, 2014

Copyright Question

You may already know by reading this newsletter that utilitarian objects are typically not protected by copyright law.  Fashion designs are but one controversial example.  Here’s a little more history.  In the 1950′s, the Supreme Court of the United States in Mazer v. Stein, held that statuettes incorporated into lamps – unarguably utilitarian objects -  were the proper subject of copyright protection in so much as the artistic component (the statue) was separable from its utilitarian function (the lamp).

lamp statue

Of course, it’s not always easy to separate the artistic from the utilitarian components of an object.  The U.S. Court of Appeals wrestled with the problem in Kieselstein-Cord v. Accessories by Pearl, Inc., when it considered whether artistically embellished belt buckles were subject to copyright protection.  The court recognized that although belt buckles were “merely useful objects,” the decorative features characteristic of the buckles being litigated rendered them something more than just useful objects.  In fact, the court wrote that the original ornamentation of the buckles was conceptually separable from their useful qualities and, therefore, deserved copyright protection.

buckles

This conclusion does not apply to any belt buckle and probably not the one your wearing unless it meets the basic requirement of originality and creativity inherent in a work of art.

Fast forward a few decades and the question arises again but this time between makers of smoking paraphernalia (presumably tobacco but times are a changing). In this case –  Inhale, Inc. v. Starbuzz Tobacco — Inhale sued Starbuzz for infringing its copyright in the distinctive shape of its skull and cross-bones adorned hookah water container.

hookah

The question was whether Inhale owned a valid copyright.  The court, agreeing with the defendant, thought not.  The issue again was whether the artistic work was either physically or conceptually separable from the utilitarian nature of the piece.  Since both parties had to agree that a hookah bottle was a “useful article,” the court looked to whether there was “conceptual” separability.  The court relied in part on a previous decision that the shape of a vodka bottle was not separable from its utilitarian features (Ets-Hokins v. Skyy Spirits Inc.).  The judge wrote that even though the water bottle had a distinctive shape – much like a sculpture – its shape could not be independent of its utilitarian function “because the shape accomplishes the function” (i.e., holding water).  So, no copyright protection and, even worse, the court awarded the defendant over a $100,000 in attorneys fees for having to defend a frivolous lawsuit.  Put that in your pipe and smoke it…..

– Adam G. Garson, Esq.

Ask Dr. Copyright …

Friday, January 31st, 2014

copyright question Dear Doc:

It seems that over the years, patents and copyrights have been in some kind of “Freaky Friday” accident, and have switched bodies. It used to be that patent was the big dog in intellectual property, but now, even big companies like Apple that win patent law suits can’t get the courts to stop infringers and win damages that are so tiny that nobody really cares. Copyrights, on the other hand, used to be about as valuable as the paper they were written on, but now, huge verdicts that put whole companies out of business are the norm.  What gives???

Signed,

Patently Confused

Dear PC:

You’ve just given the Doc a 64 foot tall soapbox here. So much so that he will have to split the answer up into multiple columns. So here goes…

You see, copyright and patent are both in the US Constitution (Const. Art. I, Sec. 7, Cl. 7 for anyone who cares.) They are the only powers in the Constitution that have an actual reason listed in the document: to promote the progress of science and the useful arts. Back then, by the way, “science” just meant knowledge, while “useful arts” were what we would today call technology. So copyright (literally the right to copy) was a 14 year exclusive on making copies of your writings, and patents protected inventions. So far, so good. But then, Congress fell victim to what the military calls “mission creep.” They started to expand these rights, both in what they protected and for how long.

Over the years since about 1976, Congress has lengthened copyright time and again, so that instead of 14 years, it now lasts for the life of the author, plus 70 years, or for 95 years from publication or 120 years from creation whichever is shorter, if the work is not registered by the author under her own name (works for hire, anonymous or pseudonymous.) What’s more, in order to benefit from the copyright law, you used to have to put a notice on your work (© 2014 Dr. Copyright) and register it in the Library of Congress. Now, copyright is automatic for everything you write down (or type, or record…) so your shopping list, Instagram photo, Facebook post, or SnapChat are all automatically protected. This has created a minefield where just about anything you see is under copyright for as long as you’re likely to be alive.

Now add in the terribly inefficient US legal system, where just setting foot in a court room costs tens of thousands of dollars, and you can see what has resulted. Finally, add in digital technology that makes it easy (and culturally acceptable) to copy just about anything with one click of a mouse, and you have a perfect storm of copyright.

Many commentators have suggested that because the Constitution says that you can’t promote the progress of knowledge after an author is dead (she’s not writing much, is she?) and because the Constitution specifically says that patents and copyrights are to be for “limited times” we should rethink this mess.  Yale Law Fellow Derek Khanna has made three suggestions: shorten copyright back to a reasonable length; get rid of “statutory damages” which allow a judge to award up to $150,000 for downloading just one song, video, or photo, and; recognize that copyright should not regulate technologies such as whether you are allowed to unlock your mobile telephone.

There are many other changes that the Doc would love to see.  Unfortunately, the law that stretched out copyrights to 95 years was called the “Mickey Mouse Copyright Term Extension Act” because Disney gave a lot of money to Representatives in Congress to keep Mickey under copyright just before his original one ran out. We are unlikely to see this Congress or any other go against the movie and music industry in our lifetimes, or for 70 years after we’re dead and gone.

Got another intellectual property law question that makes you hot under the collar? Ask the attorneys at LW&H. They’d love to discuss this stuff, especially at your next party or corporate management meeting, and even more so with an adult beverage in hand.

The “Doc”

“Next month…the Doc rants about patents and trolls…

– Lawrence A. Husick, Esq.

Ask Dr. Copyright …

Tuesday, December 31st, 2013

copyright question Dear Doc:

Well, 2013 has come and gone! Did anything happen in copyright law this year?

Signed,

Way too much time on my hands.

Dear Sir:

How DARE you! Have you not been reading the “Doc” every issue of this wonderful and scholarly newsletter? So much happened this year that the “Doc” has scarcely had time to chronicle even a small portion thereof. Here, in brief, is what the “Doc” did not have time to opine upon in 2013:

  • It may have been twenty years ago today that Sgt. Pepper taught the band to play, but 50 years ago, the lads from Liverpool entered the studio and produced “Please Please Me” (something the “Doc” says to Mrs. Doc every night, but I digress…) Now, because of changes in European copyright law, the previously-unreleased recordings from those sessions are being sold – not to increase Sir Paul’s vast fortune, but, rather, to prevent the recordings from falling into the public domain where anyone would be able to copy them. Publishing them now locks them away in the copyright vault for another 20 years. Are these recordings any good? How would the “Doc” know? I’m an intellectual property lawyer, Jim, not a music critic! Stay tuned for lots more recordings of the Beatles and other bands that were previously thought inferior to be released in the name of copyright in 2014 and beyond.  If you want to learn more about nuts and bolts of this trend, see my colleague’s most scholarly article on the subject below.
  • Under the Digital Millennium Copyright Act, a rights owner may request that a link or file be “taken down” from the Internet if it infringes copyright. In 2013, web site TorrentFreak notes, “copyright holders have asked Google to remove more than 200,000,000 allegedly infringing links from its search engine…” They further explained, “that means Google is now removing nine allegedly-infringing URLs from its indexes every single second of every single day.” That’s more than twice the rate of last year. The organizations that file the most requests are exactly those you expect: companies working on behalf of the music and film industries. And they most often go after sites such as Dilandau.eu, zippyshare.com, and filestube.com. Takedown requests take an average of six hours for Google to process, according to the search giant. This, by the way, is LOTS quicker than when Mrs. Doc requested takedown of the Christmas lights, but again, I digress…
  • Finally, although not strictly copyright, this year we learned that the National Security Agency (NSA) vacuums up, er, “collects” just about everything the “Doc” (and every other person on the planet) puts on the Internet, and saves a copy in a giant hard disk drive in Utah. Nobody has thought to sue the NSA for copyright infringement for all that secret copying (hey, the “Doc” may be on to something, so the ACLU might want to send a carrier pigeon message to the Doc.)

Here’s wishing you and yours a very proprietary 2014. And remember, if you have a question about intellectual property law, you should ask the attorneys at LW&H – they do that sort of thing, and strangely, they seem to enjoy it.

The “Doc”

– Lawrence A. Husick, Esq.

Copyright Law Forces Beatles’ Hand ….

Tuesday, December 31st, 2013

It’s been decades since the British Invasion and believe it or not, the Beatles are still releasing music.  Well, it’s not “new” music but familiar tracks, which had not seen the light of day (although many have been available for years as bootlegs).  These include four extra versions of “She Loves You,” five versions of “A Taste of Honey”, three outtakes of “There’s a Place, ” demos and BBC radio performances.

So, why did they release the music?  The folks at Apple Corps, Ltd. aren’t saying but it’s more likely than not that copyright law is the driving force.  Under current European copyright law, if the Beatles didn’t release the material, Apple Corps would lose their copyrights over the full corpus of the unreleased works.  Here’s why.  In Europe, copyright law secured  rights in published sound recordings for 50 years after the date of release. For many of the early Beatle recordings, that anniversary has passed or is approaching. In November, a new law promulgated by the European Union extended the term for 70 years from the date of original release.  Unreleased music, however, reverts to the public domain after 50 years.   So Apple Corp was compelled to release the music or lose its rights.   Additional measures in the Directive also implemented by the Regulations include:

  • that record producers set aside 20% of all revenues from the sales of sound recordings for a fund for session artists;
  • that if a record label is not commercially releasing a track that is over 50 years old, then the performers can request that the rights in the performance revert to them – a ‘use it or lose it’ clause
  • a ‘clean slate’ provision that prevents the producer from deducting advance payments from royalties after 50 years; and
  • alignment of the term of protection for the music and lyrics in a musical composition.

If you’re interested in learning more, visit this site.

Under U.S. Law the duration of copyright may be even more favorable.  For published recordings made before February 15, 1972, all such recordings will enter the public domain on February 15, 2067, in approximately 53 years.  However, if a record company publishes a previously unpublished recording today, the terms would be 70 years after death of author, or if it is a work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation.  So the result could be even more generous than the duration granted by European copyright law.

As a result of the new European law, we may begin to see is a cycle of new releases of old material by a number of artists for no other purpose than to extend the copyrights in overseas markets.  Recent releases by Bob Dylan appear to confirm this trend.

Adam G. Garson, Esq.

Ask Dr. Copyright …

Wednesday, November 27th, 2013

copyright question Dear Doc:

While searching online, I came across thousands of books – not on Amazon.com, but on Google! I could actually read the pages of those books because the words matched what I had searched, and most of the books were scanned right from the library. That’s cool – and really useful, but I thought that Google couldn’t just scan every book in the world because they were sued by a bunch of authors.  What gives?

Sincerely,

A Perplexed Searcher

Dear Perp:

You’re right! In 2004 Google started the Google Books Project, working with publishers and some of the world’s largest university and public libraries. Google started to scan every page of every book it could get its hands on.  Here’s the way Google described the effort,

“At the end of the Middle Ages, in a small town in the Rhine Valley, an unassuming metalworker tinkered with a rickety wine press, metal alloys and oil-based ink. The result of his labors was an invention that took the world’s information and made it exponentially more accessible and useful. Six centuries later, we’re seeing the same kind of innovation in the way we access information. Every day, with a few keystrokes on a computer, people are doing more than simply visiting their favorite web pages. Like Gutenberg, they are expanding the frontiers of human knowledge.”

The Authors’ Guild and publishers sued almost instantly (Authors Guild v. Google, 1:05-cv-08136.) (After all, this IS America.) They claimed that Google had no right to make a digital copy of their books, and that it could only scan books that were in the public domain (books published before the mid-1920s.) That case has been in the courts since 2005. The publishers settled, allowing Google to scan away, but things remained stalled because the authors disagreed. They demanded $750 per book scanned.

It’s important to note that although Google was making a digital copy of each book, you can’t just read the book on line. Google searches show a page that is a super version of one of those old card catalog things (you know, the ones you had to learn to use in elementary school, and that libraries have thrown away now that the “card catalog” is all on computer?) Sometimes, Google shows where you can buy or borrow the book, and a page or two, but not the whole book.

Earlier this month, a federal judge ruled that Google’s scanning is “fair use” under the Copyright Law.  It may have taken him almost eight years, but this is a big thing.  Judge Denny Chin, formerly of the U.S. District Court for the Southern District of New York, dismissed the lawsuit against Google.

Judge Chin wrote in his ruling: “Google Books provides a new and efficient way for readers and researchers to find books. It makes tens of millions of books searchable by words and phrases.” Google Books has become “an essential research tool, as it helps librarians identify and find research sources, it makes the process of interlibrary lending more efficient, and it facilitates finding and checking citations.”  “Traditionally underserved populations will benefit as they gain knowledge of and access to far more books,” he wrote. “Google Books provides print-disabled individuals with the potential to search for books and read them in a format that is compatible with text enlargement software, text-to-speech screen access software, and Braille devices.”

The Authors Guild said it is “disappointed” in Chin’s decision and plans to appeal it.

“This case presents a fundamental challenge to copyright that merits review by a higher court,” Paul Aiken, the group’s executive director, said in a statement. “Google made unauthorized digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of the fair use defense.”

Bottom line: the lawyers will continue to make money, and you will have to wait a while longer to see if Google will be permitted to scan those hundreds of millions of books you have never read.  Hang in there.

Have a question about what you’re legally permitted to copy, or any other intellectual property issue? Ask one of the attorneys at LW&H – they dream about this stuff (and that’s a really creepy thing.)

The “Doc”

– Lawrence A. Husick, Esq.

Six Strikes and You’re Out (of Internet Access) …

Monday, September 30th, 2013

baseball bat In February of this year, the Center For Copyright Information (CCI) — a group representing rights holders in the media industries — began a so-called “six-strikes” educational campaign to combat Internet piracy.  Leading Internet Service Providers  (ISP) — Verizon, Time Warner, Cablevision, Comcast and AT&T — are taking part.

Here’s how it works.  When it knows of or suspects online infringing conduct, a content provider will send an ISP a notice of copyright infringement.  The ISP will in turn forward the notice in the form of an “alert” to the offending subscriber.  These alerts are supposed to be educational in nature.  Any subscriber may receive up to six notices after which the ISP may turn off his or her Internet connectivity.  An independent review process is available should a customer believe it has been wrongfully targeted.

Not everyone likes this system.  Infringers, of course, don’t like it but others would like to see an independent body to oversee the system and not permit the ISP to “serve as judge, jury, and executioner”.  The Electronic Frontier Foundation (EFF) is concerned that the program will undermine efforts to promote free wi-fi since the CCI states that “subscribers are responsible for making sure their internet account is not used for copyright infringement” and that the ISPs urge users to restrict access to their wi-fi connections.

This seems designed to undermine the open wi-fi movement,” said the EFF, referring to efforts to encourage users to share their wi-fi connections with others. It is suggested that free internet access can make locations more tourist-friendly and aid the emergency services.  Open wireless is widely recognized to be tremendously beneficial to the public.

So what effect has the program had on online piracy rates?  According to one blogger, absolutely no effect.  In fact, piracy rates are still growing and traffic to one of the largest peer-to-peer piracy sites, Pirate Bay, has been trending higher.  Another question is what effect the system would have on litigation against infringers by content providers.  In one example, an adult film organization, which had sued a Verizon subscriber for allegedly infringing its x-rated film productions, subpoenaed Verizon for copies of six-strike notices received by the subscriber, information on how much bandwidth the subscriber used, and a list of viewed pay-per-view films he watched.  Surprisingly, Verizon said “no” and the fight continued.  We’re not sure what the results were but it appears that the CCI program will become a litigation weapon despite the stated educational intent of the program.  To date, our firm has not had the opportunity to view first hand the effects of the CCI program so if you have received a notice from your ISP, let us know.  We would like to see it.

– Adam G. Garson, Esq.

Loosely Organize those Loose Photos then Seek Copyright Protection …

Friday, August 30th, 2013

Old Photos by  Blue Elf Imagine how surprised some photographers are when we tell them  that the government fee for registering the copyrights of a complete photo shoot — comprising hundreds of photographs — is only $35.00 if you do it online.  It seems like nothing the government charges these days is only $35.00!  It represents one of the best bargains available for protecting intellectual property.  Registration gives photographers and other authors of original content access to federal courts, a presumption of validity, a public record of ownership and customs protection.

So, how do you record hundreds of unpublished works (i.e., each photo) in one single registration?  To do that, the registration must qualify as a “collection.”  The Code of Federal Regulations (37 C.F.R. Sec. 202.3(b)(4)) provides the rules:

(4) Registration as a single work. (i) For the purpose of registration on a single application and upon payment of a single registration fee, the following shall be considered a single work:

….

(B) In the case of unpublished works: all copyrightable elements that are otherwise recognizable as self-contained works, and are combined in a single unpublished “collection.” For these purposes, a combination of such elements shall be considered a “collection” if:

(1) The elements are assembled in an orderly form;

(2) The combined elements bear a single title identifying the collection as a whole;

(3) The copyright claimant in all of the elements, and in the collection as a whole, is the same; and

(4) All of the elements are by the same author, or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each element.

Registration of an unpublished “collection” extends to each copyrightable element in the collection and to the authorship, if any, involved in selecting and assembling the collection.

A photo shoot usually meets the above requirements.  It can bear a single title, e.g., “Photo Shoot August 30, 2013″; the claimant is the same for all the images, i.e., the photographer or, perhaps, the photographer’s employer; and all the elements are by the same author, i.e., the photographer. But what about the first requirement that all the elements be “assembled in an orderly form”?  Usually, numbering the images from one to whatever is deemed to be sufficient.  Recently, the U.S. Court of Appeals for the Seventh Circuit considered this question in Quincy Neri v. Melinda Monroe, No. 12-3204, (August 12, 2013, Cir. 7th).

In Neri, a defendant renovation company posted photographs of a completed architectural renovation on various Internet sites.  The photos included, without permission, images of the plaintiff’s sculpture.  This bought them a lawsuit by Neri for copyright infringement.

The magistrate dismissed the lawsuit because Neri had not registered her copyright in the sculpture — yes, registration is important but it must be done correctly! Neri had registered her copyright by submitting to the Copyright Office an application together with a collection of photographs  consisting of a bound booklet and some loose photographs of her unpublished works, the latter of which contained a picture of the sculpture.  The Magistrate judge, though, concluded that the application and resulting certificate were invalid because her submission was not in an “orderly form”.   The magistrate judge believed only a single bound book or booklet could meet the “orderly” requirement but not the loose photographs.

The Court Appeals wrote that it failed to see why only a single document can be orderly and why a court should set aside “an agency’s application of its own regulations without a strong reason.”  But just how much order is required?  No other court had addressed the question and the Court of Appeals was on its own.  The court wrote that the key question is “whether the submission [to the Copyright Office] is organized well enough to permit users and the court to pin down the “information” on which copyright enforcement depends.  The Court went on to hold that this “implies that loose photographs could suffice if numbered or labeled…”   Merely because Neri may have submitted loose photographs in support of her copyright registration was not a de facto reason to reject the registration.  Neither the copyright office nor the Court Appeals concluded that Neri’s submission was invalid.

So, photographers out there, you can submit your loose photographs to the Copyright Office but just make sure they are numbered or labeled for identification purposes.

– Adam G. Garson, Esq.

Ask Dr. Copyright

Wednesday, July 31st, 2013

Dr. Trademark Dear Doc:

I know you’ve explained the legal concept of “fair use” before, but I have a question about that. Does it infringe an author’s copyright in a book to paraphrase one sentence from the book in a movie, if you give credit to the author, or is it fair use?

Sincerely,

Absolom Absolom,  Mississippi

Dear AbAb:

Funny you would ask that question, since it is a paraphrase of one asked by United States District Judge Michael P. Mills in his recent decision in Faulkner Literary Rights LLC v. Sony.  In that suit, the heirs of William Faulkner sued Sony Pictures, which distributed Woody Allen’s movie Midnight in Paris. In the movie, Owen Wilson’s character paraphrases Faulkner’s novel, Requiem for a Nun, when he says, “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner, and he was right. I met him too. I ran into him at a dinner party.”

The actual sentences from the novel are, “The past is never dead. It’s not even past.”

Given the obvious and serious legal issues at stake, the Faulkner heirs sued for violation of the Lanham Act and the Copyright Act. On a motion by Sony to dismiss the case, the judge read the book, watched the movie, and expressed his gratitude that he had not been asked to compare The Sound and the Fury with Sharknado.

The legal question, however, turned on what the Court saw as, “(1) whether the affirmative defense raised to the copyright infringement claim can properly be considered on a motion to dismiss; (2) whether the use in Midnight is justified under a de minimis copyright analysis; (3) if the alleged infringement is not de minimis, whether or not it constitutes fair use; (4) whether Faulkner’s Lanham Act claim has merit.”

Judge Mills, in his 17 page memorandum opinion, gives a textbook lesson in fair use analysis. It all really comes down in the end, however, to his belief that Woody Allen has created a, “transmogrification in medium” by taking a sentence from the novel and using it in a different medium (film) and for a different literary purpose. According to the Merriam-Webster Dictionary, “transmogrify” means, “to change or alter greatly and often with grotesque or humorous effect.” Ahhhh… so THAT’s what Woody Allen did!

So you see, Ab, it’s fair to misquote a famous author of serious literature, if you do it in film, with comic effect. So I guess, we can try it in a law firm newsletter, too… As Woody Allen once said, “I believe there is something out there watching us. Unfortunately, it’s the government.” (But then again, that’s a real quote.)

If you need to paraphrase a famous person, it would be good to check with the attorneys at LW&H – they’re not quite famous, but they do know a lot about copyright law.

Until next month…

The “Doc”

– Lawrence A. Husick, Esq.

The DMCA to the Rescue (Maybe) …

Wednesday, July 31st, 2013

copyright In a recent embarrassing broadcast by KTVU television of San Francisco, the morning anchor, Tori Campbell, identified the pilots of the recent San Francisco Asiana airline crash as “Captain Sum Ting Wong,” “Wi Tu Lo,” “Ho Lee Fuk,” and “Bang Ding Ow.”   As she read the names, Campbell didn’t flinch and, even more perplexing, why didn’t the station snag the racist script before airing it?  To its credit, KTVU made a quick public apology and fired some employees.  The station was still faced with a newscast gone viral.  Just how would they remove all the copies of the broadcast on YouTube and other popular web sites?

Digital Millennium Copyright Act (DMCA) to the rescue!  Under the DMCA, a 1998 amendment to the US Copyright Act, copyright owners may request online service providers to take down works, which have been posted online without the owner’s permission.  We have written about take down notices in previous posts.  Service providers generally obey such requests to avoid liability for the illegal acts of their online subscribers.  And so, under the theory that the video posters had essentially stolen copies of the embarrassing newscast, KTVU undertook a “successful” campaign of sending “take down notices” to various web sites such as YouTube.  But how successful were they?  Well, if you really wanted to see the broadcast, you could find it on Bit Torrent and other file sharing sources but for the mainstream web surfers, KTVU’s campaign appeared largely successful.

KTVU may have been satisfied, but copyright lawyers were not.  There is a very compelling argument that the KTVU newscast was not protected by copyright law at all.  Section 107 of the U.S. Copyright Act places limitations on the exclusive rights granted by the Act.  Copies of works used for purposes such as criticism, comment (including parody), and news reporting are not, under the Section 107, infringing.  Rather, such use constitutes “fair use.”  Certainly, most people who posted copies of the broadcast did so for no  purpose other than criticism, comment, news or parody even it they thought it was funny.   If they were posted for racist purposes, perhaps, KTVU has an argument but many, if not the majority of postings, were comments upon the stupidity and poor management of the KTVU newsroom. Based on the fair use theory, bloggers at The Desk submitted counter-notifications with YouTube demanding that the KTVU videos be reinstated. They were apparently successful given that the broadcast is still available here.   The KTVU incident, nevertheless, demonstrates how creative use of copyright law can be used for reputation management even if the results are short-lived.

– Adam G. Garson, Esq.

Ask Dr. Copyright … Happy Birthday to Dr. Copyright

Saturday, June 29th, 2013

Dr. Trademark Dear Doc:

I took my daughter out to dinner for her birthday at a local eatery (that’s what they call a restaurant when they want to charge more for the same old burritos) and at the end of the meal, all of the servers gathered around, slapped a sombrero on her head, and sang some stupid birthday song set to the tune of “La Cucaracha”. Not that I have anything against insects, mind you, but why, oh why can’t they just wish the kid happy birthday in the traditional American way? The manager claims that he does not want to pay royalties to Warner Music for publicly performing a copyrighted song. So, what gives? Do we get to sing “Happy Birthday” to my kid before she is ready to collect Social Security?

Signed,

Happy Birthdad, to you.

Dear Hap,

I share your pain and frustration over this issue of burning importance, and so, apparently, does a newly formed company called, “Good Morning to You Productions Corp.” That company has filed a class action lawsuit against Warner/Chappell Music seeking the return of millions of dollars collected in royalties, and a determination that Happy Birthday To You is no longer protected by copyright.

The company is making a documentary film about the history of Happy Birthday. They were told by Warner that if they wished to use the song in their movie, they would have to pay $1,500.00 for a “synchronization license.” Fail to pay, and the law says that you may have to cough up as much as $150,000 in statutory damages. Chump change for Lucas or Spielberg, but for churchmouse-poor documentarians, that’s an awful lot of ramen noodles. So, in a wonderful case of art-imitates-life-imitates-art (or some such existential nonsense) GMTYPC hired lawyers to go after big, bad Warner/Chappell.

Here, in a nutshell (or at least a complicated paragraph) is what they claim: In 1893, Patty Smith Hill and Mildred Hill wrote a ditty called, “Good Morning To All.” They sold the rights to the song and it appeared in a book called “Song Stories for the Kindergarten” which was registered for copyright in 1894. Years later, the words “Happy Birthday” were substituted for “Good Morning” and in 1911, the Board of Sunday Schools of the Methodist Episcopal Church published the full “Happy Birthday” version, referencing a book called “Song Stories for the Sunday School” by Patty Hill. The Church filed for a copyright on this in 1912. According to the plaintiff, all of those copyrights either expired or were never renewed. In 1924, these lyrics appeared in another published song book. In 1935, a piano arrangement of the song was published. Under the current copyright law, works published after 1923 get 95 years of protection. But, GMTYPC alleges in its law suit that it has “irrefutable documentary evidence” (which is a good kind of evidence for a documentary film maker to have) that if there was ever a valid copyright on Happy Birthday To You, it expired in (drumroll) 1921, and all that Warner/Chappell ever owned, if it had anything, is a right to copy and distribute that 1935 piano arrangement. Period.

So what does GMTYPC want? They say that a class of everyone who has paid Warner/Chappell exists, and that Warner/Chappell collects more than $2 million per year in royalties on Happy Birthday – and that they class should get its money back (less, of course, really big legal fees). They want the court to declare that Happy Birthday is no longer protected by copyright and is in the public domain. And a bunch of other legal stuff.

As for the Doc, he can’t wait for the movie to come out…who knew that copyright law could be as thrilling as The DaVinci Code?

Have a copyright or other intellectual property law thriller? Ask the attorneys at Lipton, Weinberger & Husick – they’re pretty thrilling folks in their own right!

– Lawrence A. Husick, Esq.