I never thought I would live to see this day. The insane (and, frankly, terrifying) thorny network of crufted together copyright laws that that have developed since 1909 has made all common sense go out the window when people looked at the claim made by Warner/Chappell Music Publishing when it came to this 19th Century song.
Stories of the costs people used to have to shell out to include 9 seconds of this not-very-good-song in a documentary are legendary, and the oft-litigious company was leaning heavily on a 1935 renewal of the copyright that was the lynchpin in their argument that they could continue to collect from people wanting to include the song in their art as an accurate reflection of the world around us.
But rather than let reality speak to the common sense when it came to enforcing copyright, this song has became an symbol symbol for everything possible and everything wrong with the practice of copyright enforcement in the music industry. With the power that “Happy Birthday” wielded in the way Warner did, it sent a message to copyright holders that the songs in their rosters were “revenue streams” that should be exploited at every opportunity, rather than a way to protect the artist from outright theft when it came to song writing. While some arcane story existed about two old ladies that owned “Happy Birthday,” the truth has been that Warner has collected that money for decades, and has forced all manner of artist to compromise on the use of something that spontaneously breaks out at parties, without forethought.
And, finally, it has been dethroned.
Far be it for irony to play a role in something that was already a pretty entertaining stage play acted out in the courtrooom, the key piece of evidence in this case happened to be a very old “songbook” that was published in 1935. In this digital age of .mp3s and free WiFi everywhere, it is nice to know that a physical book was the item that helped make the case, but in a typical turn of events, Sound Opinions reported that the book in question was reviewed using .pdfs, so we’re not quite calling this one a triumph for old media, either. Still, this tid-bit is sort of at the center of the real issue: old media law dictating the new media landscape.
The ins and outs of the trial seem a little insane, and the history of this song has been documented again and again. In much the same way that Capone was jailed for tax evasion rather than the real crimes he was guilty of, Warner had been committing worse atrocities with the way they were renewing this copyright, allowing them to insist on millions in payments from people who wanted to use the song in their film / radio program / digital media creation / etc. However, it was finally revealed in court that the 1935 copyright was invalid at the time it was originally filed.
“Happy Birthday” had, consequently, slipped into the public domain before 1935, and could not be renewed, legally. This invalidated Warner’s enforcement ever since, not only putting 80 years worth of money into their bank account that they shouldn’t have had in the first place, but creating a terrible example of how a company can throw around their weight to “protect” a copyright when there may not even be one to begin with. Publishers that get into the habit of being litigious when it comes to infringement need only look to Warner as an example of not only what, but how to enforce a copyright through a media smear campaign. Now that “Happy Birthday” is back in the Public Domain, hopefully we can take another step toward rehabilitating the rest of the Music Industy’s relationship to copyright.
This isn’t just good for people who want to feel better about singing the song without compensating the copyright holder, or for a group of cats in birthday hats. It’s a good move for art and creativity on the whole. “Copyright” is a complicated legal world unto itself, and while there are absolutely good uses for it, on the whole copyright is used to collect money when another artist wants to use a work that is copywritten as part of another creative work.
(For example: My movie wants to use a song in it, and the song is copywritten. I pay the copywrite holder, and I can now use the song in my film, as I have compensated the artist. This scales down to sampling in music, and up to, “let’s show part of this other movie in this movie.”)
But the amounts charged for “cleared” copywritten material has alway been nebulous, and there are no real enforced rules or guidelines, except those established by the copywrite holder. How much a work can cost for use can fluctuate dramatically from work to work, and artist to artist. No one has ever paid to use a song I wrote in a film, for example, but “Happy Birthday” could run up to $5,000 per use, if not more.
Beyonce, most likely, is somewhere in the middle.
Let’s Talk About Old And Irrelevant Paper Documents, While We’re Discussing Shitty Songbooks, Too
The larger issue of copyright has to do with the law itself. US Copyright law is complicated enough, but the core idea has not changed much, even since colonial times:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (Article I, Section 8, Clause 8 of The United States Constitution.)
However, our current copyright law was drafted in 1976, with revisions in the years since through to 2014. The 1976 law itself a law that was revising – and not by much – the law that had been in effect since 1909. Consider the cultural changes that have occurred since then, with a law we keep amending each time something comes up. These were written before The Internet, before Compact Discs, before digital file storage systems or Open Architecture. In someways it was written before mix tapes and podcasts, let along all the forms of media that are currently popular in our culture. They are certainly pre-blog and Facebook. The sharing culture of the Internet – something considered de facto and a part of the world as we know it – is something that is antithetical to the idea of copyright law.
Consider the copyright lawsuits that have cropped up in the last couple decades. In the ’90’s, there seemed to be any number of cases regarding the way Hip Hop artists were being sued over and over again for using sampling, something that has slowed down tremendously in the modern world. More samples overall are cleared, these days many samples are used for free because it means free advertising for the original work, and culturally everyone agrees that sampling is not the problem it was seen in the year 2000. It should be noted that litigators are now looking toward Robin Thicke / Marvin Gaye style rip-offs, or in other cases, the Spirit / Led Zeppelin controversy. But sampling lawsuits are a much rarer breed these days, with the last big one in 2008.
If copyright law was written now, it would include sampling as a part of songwriting, something that is not currently a part of the 1976 Copyright law. (Updates to it account for sampling as something that can be cleared with the copyright holder, but rather than using the common sense approach that is is a part of the form of composition, the law has it written in as an exception that needs to be handled case by case.) This is just one example of the ways that copyright law doesn’t even aknowledge the digital world we live in, or the reality of people wanting to wish each other a “Happy Birthday” in the form of a convenient (and culturally well-known) song.
Even if the song is awful.
In meme terms, there isn’t a cute sentence I can slap on a .gif that can really get to the heart of the issue – for any side of it – that we can use to propagate a sensible copyright strategy that could stand up to scrutiny and 4Chan. But as things stand now, writing and art seem somewhat stymied by copyright, especially in a post-modern, digitally literate culture that are used to bite-sized YouTube snippets, paragraphs copies out of eBooks, and the creative re-arrangement of images and texts – of Star Wars & Dr. Who – that even Disney & Marvel are struggling with ideas of ownership when it just makes sense that Spiderman would show up in a goddamn Avengers movie, RIGHT? The idea that culture has costs is occasionally negotiated in stores and at the cinema, but at home entertainment is consumed in parallel, for free, and re-contextualized for discussion on Tumblr & Twitter later on.
The culture attitudes toward copywritten material has already dictated that they want it to be free. But negotiating the way this plays out in law would be like trying to, for example, legalize a drug due to public opinion.
In a world where entertainment and art are largely free in this sense, the only time money should come into play is if a copyright violation has actually occurred in a way that upsets the value of the work as a monetize-able entity produced by the original artist, but as sharing and reuse become creative works in and of themselves, where to draw that line becomes harder to define, and copyright law that doesn’t understand the nuance of a digital art work is not going to understand the difference between one .tiff and another.
An outmoded vision of copyright – like the vision Warner had for “Happy Birthday” – does not reflect the way art and writing occur in a creatively fertile world. No, this does not mean that I am going to take a recording of Frank Sinatra and try to sell it as my own because there is no law and I am an anarchist, though there are shades of that project that could be decontextualized as an art piece that may look suspiciously like me trying to sell Frank Sinatra’s music as my own. But that question should be one in the audiences mind, to consider the work and its attempt to make a statement that is unique and important. In the end, shouldn’t the art have to defend itself, rather than a legal bully coming in to say that something y is too close to something x, and therefore shouldn’t have financial merit?
To “sum up” Crosley Bendix, a protection that I would like to make sure the copyright holder continues to enforce is the outright theft of a recording, to be sold as something purporting to be owned by another artist. But if I want to make a Girl Talk style mash-up of a Sinatra and Crosby song, with some programmed drum parts, and then use it in a YouTube video that I share with my readers, then there needs to be some wiggle room in the copyright law to see that as a unique work that does not infringe, but creates, and expands the world of art. Let my ability as a mash-up artist be what is on trial, and not some archaic law.
And, while I’m at it: really, “Happy Birthday” is an abomination. The tune sucks, the lyrics are dumb, and the rote reccitation of the song in groups is not only eerie, but depressing.
Please, take a page from me, and ask your friends to sing “Sailor Man” by Turbonegro to you instead. It is not only a far superior song, but try explaining to someone why a group of people just sang a very strange homoerotic punk song to a bewildered friend of yours in public.
It will make a good story, and everyone wins.