22 July 2010

Happy Birthday, Dear [Insert your name here]

In honor of the recent birthday of my friend Michael Lorenz:

Stefany Anne Golberg has a piece in the current issue of The Smart Set on "Happy Birthday To You," probably the world's most famous song—and also, arguably (because there are so many to choose from), the most egregious example of the utter absurdity of current copyright law.

Golberg gives this latter aspect of the story relatively short shrift.  For a good summary of the history of the song and its copyright, see the Wikipedia article "Happy Birthday To You."

The executive summary: in 1893, sisters Patty and Mildred J. Hill published their song "Good Morning to All" (with the familiar "Happy Birthday" melody), which is now in the public domain (no one disputes this). As the Wikipedia article points out, "Good Morning to All" was closely based on prior songs and words in any case.

At some point, the sisters began informally to use the alternative "Birthday" words at birthday parties. However, they didn't copyright this version.

This version of the song was copyrighted in 1935 as a "work for hire" by Preston Ware Orem for Summy (later Summy Birchard), and these "rights" are currently "owned" by Warner Music:
The company continues to insist that one cannot sing the "Happy Birthday to You" lyrics for profit without paying royalties: in 2008, Warner collected about $5000 per day ($2 million per year) in royalties for the song. This includes use in film, television, radio, anywhere open to the public, or even among a group where a substantial number of those in attendance are not family or friend to whoever is performing the song.
And further:
Based on the 1935 copyright registration, Warner claims that U.S. copyright will not expire until 2030, and that unauthorized public performances of the song are technically illegal unless royalties are paid to it. In one specific instance in February 2010, these royalties were said to amount to $700.
But one would think that there is an evident problem here, since Preston Ware Orem did not, in fact, write the song.

Robert Brauneis's comprehensive legal study of the copyright of "Happy Birthday" is freely available, and anyone interested in the tangled history should read it. His conclusion (almost certainly correct): the song is not actually under copyright because the registration of 1935 was invalid.

But because there is no penalty or sanction of any kind for pursuing false claims of copyright, and because corporations like Warner have such deep pockets, it is virtually impossible for anyone to fight their false (and frankly downright absurd) claim.

And so we keep paying and paying, and musicians who might occasionally perform the song in public have to pretend that they don't. And they never mention that they've done so in print or online, because the catacombs of the "rights holders" are full of trolls who spend their time tracking down just this sort of crime.

Fortunately, I've never played it in public, of course. Nope. Not me.

A recent example of the absurdity of this situation, from my personal experience:

As a sometime teacher of adult beginners on piano, I have often used, ever since it appeared, the two-volume series Adult Piano Adventures by Nancy and Randall Faber. It includes lots of songs that adults know and like, in a variety of styles and genres, and the songs often include duet parts for the teacher that allow the student to participate in playing some harmonically pretty sophisticated arrangements from an early stage.

A couple of years ago, I discovered to my horror (through one of my students, who was attempting
to buy one of the volumes, at my recommendation) that the series had been taken off the market. Further investigation found that it had been taken off the market because of copyright issues
(even though songs in the original volumes had relevant copyright information appended
 wherever applicable).

Fortunately, it turned out the contents of the volumes were being slightly retooled to cope with the claims, and they are now available again.

I don't know the full extent of the copyright issues involved, but one evidently had to do with "Happy Birthday,"  for there was a change to the status of the song in the revised version of volume 1.

The song had been placed about half-way through the original version of the volume, with a copyright notice. In the revised version, the tune still appears, but now with the idiotic substitute words "Happy Weekend to You." And no copyright notice.

(I would suppose, technically, the copyright on this new text belongs to the Fabers or their publishers, so you will need to contact them if you wish to perform it in public.)

So apparently the relevant lawyers decided that the tune wasn't under a defensible copyright, but the words are. The words are, lest you forget (I quote in full from Golberg's piece, so sue her, not me):
Happy birthday to you
Happy birthday to you
Happy birthday, dear (name)
Happy birthday to you!
And for this, Warner makes $2 million dollars a year.

I think, however, that I should be able to recover from Warner a royalty of at least $15,000 every time the song is sung with my name inserted.  And the rest of you might want to do the same.

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