Sunday, August 23, 2015

Happy Birthday: How copyright lost touch with reality

The world's most popular song is about to have a birthday.

It's Happy Birthday to You, and it will turn 121 on October 13.

Yet unbelievably, if we are to take at face value the claims of Warner/Chappell Music, it is still in copyright.

An awful lot of people find it easier to take the claims at face value. They pay up, making Warner/Chappell a reported $2 million a year from the song. It even hit up the American Girl Scouts for a fee after they sang it at a camp. Others buckle in different ways. At least one documentary movie has been withdrawn from circulation because it included footage of subjects singing Happy Birthday without authorisation. Most movies avoid it. How long since you've seen it in a birthday scene?

You're safe singing it at home though. That's a private rather than a public performance.

How can it be that a tune almost universally regarded as public property is still be in copyright 121 years after it was composed? Especially given that at the time the initial term of copyright was 28 years. The answers are spilling out in a US court case which is exposing how murky and fear-ridden the world of copyright really is.

One of them is that the world's favourite composition was a composition. Just like Kookaburra Sits in the Old Gum Tree, wrongly listed in the Angus and Robertson All-time Favourite Australian Song Book as "traditional", Happy Birthday was actually composed by a person: two people in fact, Patty and Mildred Hill – one of them a teacher, the other a musicologist. They tried out their compositions on Patty's students.

Somewhere in the late 1880s they achieved something remarkable: a song that fitted the limited vocal range of children yet was meaningful, a bit like Kookaburra.

Initially named "Good Morning to All", they published it in a 1894 book called Song Stories for the Kindergarten.

Decades later it began appearing in other books under a different title: Happy Birthday to You.

Until that point America hadn't had a birthday song.

Legal historian Robert Brauneis​ has made the song his life's work. He says birthday parties only became common in the early-1880s and birthday cakes in the mid-1880s. American schools weren't age-graded until the late 1800s, meaning America lacked "the prerequisites for the development of a standard birthday song – the proliferation of birthday celebrations that involved a dramatic moment at which a group of invitees, often children, addressed the honoree".

Until Happy Birthday.

By rights it ought to be long out of copyright, if it was ever in it. Back in those days authors had to register to stake a claim. The initial term was 28 years, with an extension of 14 years on application. But in 1909 the US extended the term of the extension, then extended it again in 1976 and again in 1998.

Every one of those extensions was retrospective, right up to the present 67 years, making a total of 95. This means that because the version Warner/Chappell claims to own was published in 1935, its multimillion-dollar copyright won't expire until 2030.

Or so it says. The performers it has touched up for money have found it easier to pay than argue, until now.

Touched up for a mere $US1500 in 2013, filmmaker Jennifer Nelson said no. She crowdfunded a lawsuit and has come up with what her legal team describe as a "proverbial smoking gun". Buried within a cache of documents initially withheld and too blurry to read was a copy of a book with the music with birthday lyrics published in 1922, well before the 1935 publication that Warner/Chappell claimed was the first. After finding the original in a library, her legal team determined that it lacked the copyright notice required at the time of first publication, meaning that Happy Birthday to You was probably never in copyright and was merely reprinted in 1935.

If the court rules in Nelson's favour Warner/Chappell might have to repay a fortune. But she has uncovered more than potential fraud. She's discovered how difficult it is for anyone to be sure of what happened so long ago. In Australia scores of songs and books are unavailable for public use merely because no one knows who owns them. They're called "orphan works", locked away forever, just in case.

This week Treasurer Joe Hockey announced a long-overdue Productivity Commission inquiry into Australia's intellectual property laws. It might turn out to be one of his most important decisions.

Peter Martin is economics editor of The Age.

In The Age and Sydney Morning Herald