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ATPM 10.09
September 2004




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The Desktop Muse

by David Ozab,

This Song Belongs to You and Me

As we learned recently in the news, Woody Guthrie’s classic folk song “This Land is Your Land” is actually in the public domain. The controversy began early last month, when Ludlow Music sued Jib Jab (a political satire site) that posted a parody of negative campaigning set to Guthrie’s music. (Anyone unfamiliar with this story can find numerous references online.)

Little did Ludlow Music realize that they really didn’t own anything. As the court discovered, Guthrie originally copyrighted the song in 1945 (as part of a songbook, which the Electronic Frontier Foundation found at the Library of Congress). At that time, copyrights lasted twenty eight years and could be renewed once during that term for another twenty eight years. Guthrie, however, neglected to renew the copyright which expired in 1973.

Meanwhile Ludlow Music, unaware of Guthrie’s original copyright, registered the song in 1956 as an original copyright, not a renewal. Ludlow then renewed the invalid copyright in 1984, which, unknown to them, was eleven years too late.

Public Domain? Don’t Be So Sure.

It’s surprising just what is and isn’t in the public domain. A song may be a part of the fabric of the culture, as “This Land” is, but don’t assume that means it belongs to the people. A case in point: “Happy Birthday to You.” We’ve all sung it countless times at countless birthday parties, plus offices, schools, churches, etc. Yet, the seemingly timeless, authorless, should-belong-to-everyone “Happy Birthday” is under copyright, and will remain so until at least 2030.

Timing, Timing, Timing

The original melody we know today as “Happy Birthday” was written in 1893 by Mildred Hill. Her sister, Patty, added some simple words welcoming students to class:

Good morning to you
Good morning to you
Good morning, dear children
Good morning to all.

Not much different from countless other songs made up to entertain kindergartners. The original was published in 1893 in the songbook Song Stories for the Kindergarten. Soon after, the word “children” was changed to “teacher,” and the last line was changed to match the first two. The result was titled “Good Morning to You.”

The words we’re all familiar with first appeared as a second stanza to “Good Morning to You” in 1924. Soon after, thanks in part to radio and talking pictures, the song became a birthday celebration song.

Happy Birthday to You, Shut Up or We’ll Sue!

The song appeared in the Broadway musical “The Bandwagon” in 1931, was used for Western Union’s first singing telegram in 1933, and Irving Berlin musical “When Thousands Cheer,” also in 1933. The Hill family received no compensation for any of these performances, so in 1934 Jessica Hill (the third sister) sued on behalf of her siblings. As a result, “Happy Birthday” was copyrighted and published by the Clayton F. Summy Company in 1935.

Under the copyright law of the time, “Happy Birthday” should have entered the public domain by 1991 at the latest (following two twenty-eight year terms). But the Copyright Act of 1976 extended the term of protection to 75 years and the Copyright Extension Act of 1998 added yet another 20 years. So, as a result, “Happy Birthday” will not enter public domain until 2030. That’s a whopping 137 years after the melody was originally composed.

So What Can I Sing at Birthdays?

Does that mean that every time “Happy Birthday” is sung that royalties are due. Of course not. Commercial uses, such as those that led to the original suit of 1934, as well as performances before large groups of people, require royalty payments, though the latter cases are rarely enforced. It does make me wonder, though, about other versions of birthday songs sung at theme restaurants.

And Why Do I Bring This Up

Well, first off, it’s a fun fact that many don’t know. But more importantly it shows just how ridiculous copyright laws have become. Some suggest going back to the original fourteen-year term (so-called “Founders Copyright”), but that’s unrealistic. Too much time and money is invested in arts and entertainment. Only having fourteen years of benefit will discourage investment. In addition, as an artist, I like to have some control over how my work is used. To lose that control after only fourteen years and have a work I poured my soul into used to sell cat food is unthinkable. Perhaps a better idea would be to go back to the 28-year renewable copyright, but to allow two renewals instead of just one. The result would be a maximum term of 74 years (almost identical to the 1976 version of copyright law), which would easily span the lifetime of an artist. It won’t happen of course. There’s too much financial interest involved in making copyright last as long as possible.

Thanks to Wired News and for providing the background information to this article.

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Reader Comments (1)

Dave Reed · September 3, 2004 - 11:04 EST #1
I have always promoted the idea of a renewable copyright. I suggest a renewal fee, small but real. Say $100. The idea is to sort the economicaly viable works from the rest of the herd.

You see, the copyright extension act is brought foth every 20 years so that corporations won't loose their profitable properties. The Disny Corp is the most obvious example. Their vault of classic animation is far more valuable that gold. But, if the copyright ran out, it would be worthless. To Disney, anyway. To avoid this disaster, Disney (and the rest of the entertainment industry) goes to congress every 20 years and arranges for an extension.

But the also extend the copyright on every other work in the country at the same time. Books, music, movies that have no commercial value left. But MAY have value as the basis of new works. As a recent example, look at "The League of Extraordinary Gentlemen". All those characters are in the public domain. So they could be use to create a new work of art. (OK, there is some disagreement about how much ART was in that movie, but the graphic novel was brilliant!)

Without material falling into public domain, we loose the intellectual equivelent of fertilizer. We loose the ability to build on the works that have gone before. We must 'reinvent the wheel' for every work created.

But realisticly, we are never going to see Micky Mouse in the public domain. It just ain't gonna happen. So let's keep the mouse safe, along with the rest of the Disney Vault, but free the hundreds of thousands of other works to the public domain.

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