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May 28, 2005
HappY Birthday to You: Final Chapter
I have been around the world asking about the term of copyrights, reviewing various laws in various countries:
According to Circular 15t, US Copyright Office
Renewed Copyrights Automatically Extended to Maximum of 95 Years
Under the statute, copyrights that had already been renewed and were in their second term at any time between December 31, 1976, and December 31, 1977, inclusive, were automatically extended in duration. The total length of these copyrights is now 95 years from the end of the year in which they were originally secured.
So in the United States
2030 for the lyrics (if they really own them)
music: copyrights expired in Jan. 1, 1950
But in the rest of the world, notably the EU countries, and other Berne signatores, the rule of law is author's life + 70 years. So in Europe, the copyright on both the music and lyrics might expire in 2016, but in Germany and the UK, the longer term of 2030 might be upheld. ??? International Copyright law? I have nothing but questions.
Remember that Internet is a worldwide usage, so IF the 1935 Happy Birthday to You musical composition is really, really owned by Warner-Chappell, the copyright won't expire until 2030... that is unless the term gets another extension.
One last question remains; I have a copy of a 1912 publication that features "Happy Birthday to You" which was not published by Clayton F. Summy and was not authorized by the Hill sisters (and was not published by Robert H. Coleman either). This very well may have been an infringement on the lyrics of "Good Morning to All" but unless the Hill sisters fixed the "Happy Birthday to You" variation of their song in a tangible form prior to 1912, the author's right to first publication would not apply. How would they get ownership of a derivative work that they did not fix in tangible form?
Also there are citations of earlier publications, and copyrights, that predated the Hill sister's 1893 "Song Stories for the Kindergarten". Is there proof out there that this song, popluarly known as the Happy birthday song, is nothing itself but a derivative work?
Curious minds want to know!
Posted by photocartoonist at May 28, 2005 11:28 PM
Comments
As a matter of principle, I have a real problem with any company demanding high fees for something they do not own. But as a matter of business, WHO is going to take this multi-national conglomerate to task for this issue?
And the question was and IS, what will Warner do?
Posted by: Kat Caverly at June 3, 2005 7:29 PM
According to Patty Hill in her 1935 deposition in the lawsuit, Jessica Hill v Sam Harris et al, the song titled "Good Morning to All" was written sometime between 1887 - 1893. It was presented in the songbook "Song Stories for the Kindergarten" to 3000 teachers at the Chicago World's Fair in 1893, and also published and registered that same year.
Neither Patty Hill, nor her sister Jessica (or the publisher Clayton F. Summy Co.) claimed to have ever published the lyrics "Happy Birthday to You" but Patty Hill did say that there were many variations to her lyrics, and her lyrics were:
Good morning to you
Good morning to you
Good morning dear children
Good morning to all
and that many variations of these lyrics were sung at various occasions with children and with teachers.
There is no claim that she and her sister wrote "Happy Birthday to You". And furthermore there is no publication, nor registration of an unpublished copy, of such lyrics by the Hill sisters prior to 1912.
1912 is an important date to me due to the fact that I have a copy of a publication with the "Happy Birthday to You" lyrics, © 1912. Many experts agree that there are earlier editions and whether or not these editions were authorized by the Hills or their publishing company is unimportant. According to the Copyright Act of 1909, publication and/or registration were necessary for a claim of copyright (note, if published a work had to be registered with the copyright office within 3 months).
All copyright laws, worldwide, require that a work be "fixed in some tangible form". but prior to Jan. 1, 1978 there existed somethng called common law copyrights for unpublished works that lasted in perpetuity. So the Hill sisters or the Clayton F. Summy Company would have had to write down the Happy Birthday to You lyrics, to have any claim of "right to first publication" and this would have had to have been after July 1, 1909.
Any claim of ownership of anything NEW with a first publication date of 1935 is ridiculous but may actually benefit from a technicality of law. It does seem possible that Clayton F. Summy claims to be the first authorized publication of lyrics that were arguably public domain in 1934 combined with the music. And some legal minds think this may constitute a valid copyright claim.
Posted by: Kat Caverly at June 12, 2005 5:06 PM
"Prior to July 1, 1909 there were no specific provisions for unpublished works."
Not entirely true and misleading at best. I know I'm having this conversation with myself. Funny I should also have a debate!
Prior to Jan. 1, 1978, there was such a distinction as common-law versus statutory copyright. Unpublished works were covered by common-law copyright in perpetuity. Statutory copyright had a term of 28 years with one 28 year extension. And there were statutory requirements once a work was published, for example teh copyright notice was required.
After Jan. 1, 1978 the Copyright Act of 1976 covered unpublished works. Since there has been statutory copyright on unpublished works.
The public domain is an area that has gotten my attention and recent developments in copyright law, most notably the fact that the US became a Berne member in 1989 and the Copyright Term Extension Act of 1998, have shed new light on exactly what IS public domain.
Unpublished works had and still have the challenge of proof. How do you prove that you have created something? Registration with the US copyright office is "prima facie" proof (a Latin expression meaning "at first sight," used in common law regions to denote a case that is strong enough to justify further discovery and possibly a full trial) of ownership. But it is by no means "proof" without evidence.
In copyright law the date something was created has relevance, and publication does put a dated stamp on a work. There are many reason why a creator would not want to publish a work at any particular time, and the law, since the Statute of Anne, had recognized an author's right to first publication.
All that being said, a work still must be "fixed in a tangible form" to be recognized by any copyright law past or present; here in the United States or in any other country.
And note, a speech, or a performance is not considered a tangible form unless it is recorded in a fixed medium.
Posted by: Kat Caverly at June 13, 2005 1:53 PM
I actaully have a copy of the 1893 book, does anyone know the value?
Posted by: Dorean at September 6, 2006 1:18 PM