Wednesday, September 30, 2015

10.1.15 THEY SAY IT'S YER BERFDAY


This article originally appeared in the 10.1.15 issue of Metroland.

Well, it’s silly season on Facebook again, where the more gullible amongst us get their knickers in a twist over some fake nonsense about Facebook’s inherent evility.   Both of the things that popped up this week, or versions of them, have been around before, and they were debated, debunked, and banished.  But they’re back, demonstrating, again, how oddly paranoid and delusional many of us are.

            First of all, don’t you worry, Mark Zuckerman isn’t going to charge you to keep your information “private” or to let you continue to use FB.  The twist with this ruse this time is that the claim was supposedly backed up by an article somewhere on Huffington Post.  I spent a few minutes of my life looking for such an article and couldn’t, but it doesn’t matter.  It’s not gonna happen, the very idea that it could happen is ridiculous, and if you believed it, even for a second, you’re ridiculous.

            And then there’s that bold “declaration” of privacy rights, where the poster stridently proclaims to be master of his or her FB domain under some European UCC code and all that’s holy, and that the reposting, use, pondering, smelling, or licking of the poster’s content is punishable by slow death.  Or something.  C’mon.  Do you really think that your posting of some fake-legal gobbledy-gook is going to trump the terms of service you agreed to when you signed up for FB?  Really?  And where were you two years ago when this crap went around the first time?

            But then, we live in a country so dumbed-down by the media that a good number of us believe we walked among the dinosaurs 10,000 years ago, that the earth really was created in a week, that the Kardashians are role models and that Donald Trump is a serious choice for President.  We are a stupid idiot nation.  It’s just disheartening to be reminded.

            Moving on.  You may have heard that a judge ruled that music publishing giant Warner Chappell’s copyright in the song “Happy Birthday” was invalid.  For years, Warner Chappell has been shaking down filmmakers, television producers, and anyone else who wants to use the ubiquitous ditty for hefty licensing fees, and has also been getting big fat checks from ASCAP for things like when the waiters at a Chinese restaurant gather around your table and sing “happy birthday, dear customer….”  It’s been reported that WC has been raking in over $2M simoleons annually from this.  And pretty much everybody agrees that it’s stupid.  Livestream-broadcasted conferences have gotten interrupted when the audience decides to sing “Happy Birthday”; Stephen Colbert introduced an alternative, hilarious, royalty-free song people could use instead. But, until recently nobody’s challenged Warner Chappell’s claimed monopoly on this silly little song we’ve all sung at birthday parties hundreds of times.

            In 2008 some academics published a paper that showed that the melody of “Happy Birthday” was definitely in the public domain and that the lyrics almost definitely were.  Then in 2013 Warner Chappell finally got sued.  Just this past June, the plaintiffs uncovered an old songbook containing the lyrics that was published in 1922, which would indicate that the lyrics were also in the public domain.  And last week the judge ruled that Warner Chappell’s copyright was indeed a crock.

            Interestingly (or not), the judge didn’t rule that the lyrics to Happy Birthday were in the public domain, as has been widely reported.  Nope.  Not yet anyway.

            The decision is frustrating and complex, but in the final analysis, kind of hard to argue with.  It grapples with things that may or may not have happened almost 100 years ago, based on shreds of evidence that are at best ambiguous.  A pair of sisters claimed to have written the lyrics, but didn’t register the copyrights themselves.  It’s not clear that they ever authorized anybody else to register the copyrights either.  That songbook in 1922?  There’s no good evidence that the sisters licensed the lyrics to it. Or didn’t! So what was Warner Chappell hanging its hat on?  A copyright registration from 1935 naming one Preston Ware Orem as the author of a “Republished Musical Composition with New Copyright Matter.”  And the “new copyright matter” was described as “piano arrangement, with text.”  The court ruled that since Preston Ware Orem was not one of the sisters, and since everybody pretty much agreed that the sisters wrote the lyrics, that the “with text” part couldn’t be referring to the lyrics, and if it did, it was invalid.  Warner Chappell, say buh-bye to your cash cow!

            So, whether there is still some kind of copyright for “Happy Birthday” is unclear.  But given all the water over the dam, it’s highly doubtful.  So, pending the almost certain appeal of the decision by Warner Chappell, I say go ahead and use the damn thing.  Happy Birthday to you!


Paul C. Rapp is an intellectual property attorney and a crudely erudite student of the oddities of popular culture.  Like this here.

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