Friday, May 29, 2015

Singing Happy Birthday in Public is Really Copyright Infringement

The ever present, evergreen "Happy Birthday to You" song is said to be under copyright. Any public singing of the song, or displaying of the song on TV or radio can be done only after obtaining permission and paying licensing fees to Warner-Chappell Music, a divison of Warner brothers.

Happy Birthday song is under copyright - says Warner-Chappell - but it is NOT really

The copyright of the song continues to be enforced and Warner Brothers continues to collect more than $2 million each year in royalties. 

This is a true story, verified on snopes, not just an urban legend.

Happy Birthday is Really copyrighted.
There is no doubt about that.

But is it really a real copyright ?
In recent years, some legal scholars have pointed out a number of potential problems with Warner/Chappell's claims to copyright ownership of "Happy Birthday to You," namely that there is little or no evidence that Patty Smith Hill actually wrote the lyrics to the song, that the first authorized publication of "Happy Birthday to You" bore an improper copyright notice (resulting in forfeiture of copyright protection), and that the copyright renewals filed in 1963 by Summy-Birchard covered only particular arrangements of the song and not the song itself.

In June 2013, a film company working on a documentary about "Happy Birthday to You" filed a class action lawsuit which seeks to invalidate Warner/Chappell's claim to copyright ownership of the song and force the company to return millions of dollars they have collected over the years for wrongfully asserting copyright ownership

Do you know what this would mean ? Every restaurant in the world would be singing "Happy Birthday" instead of some lame locally made up song. We would be hearing "Happy Birthday" at every TV show birthday party! That song will inundate society more than it already does. At present, many restaurants make up their own "Happy Birthday" songs to avoid copyright issues.

According to United States copyright law in United States Code, Title 17 §106, authors of works such as musical compositions have the exclusive right "to perform the copyrighted work publicly." In United States Code, Title 17 §101, the law defines publicly performing a work as "to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."

Additionally, United States Code Title 17, §110(4) states that singing the song among a group of people "without any direct or indirect commercial advantage" will not constitute infringement either. But keep in mind: "indirect commercial advantage" is very broad. Courts have found that restaurants, camps, and other venues benefit indirectly from performances of songs like Happy Birthday. Unless the song has been licensed in these situations, it's infringement.

This means that if you sing Happy Birthday to your family at home, you're probably not committing copyright infringment. However, if you do it in an restaurant — and if the restaurant hasn't already worked out a deal with ASCAP — you may be engaging in copyright infringement.

The website tells you exactly how to deal with this situation

How Can I Help Stop Infringement?

The best way to stop infringement is to tell the authorities and the owners so that they can follow up and arrange for a license and for royalties to be paid. Licenses for Happy Birthday are controlled by ASCAP. While monetary royalties will be negligible for a single restaurant performance, it is the principle that is at stake.
If you have seen someone singing Happy Birthday in a restaurant, a park, or at a school, you should tell ASCAP so that they can arrange for a license. If you are an offender, you should apologize and offer to pay whatever is due — a nickel, a quarter, a dollar — whatever ASCAP demands.
There is an overwhelming amount of copyright infringement of Happy Birthday. Let's right the balance and tell ASCAP about every one of these violations!
There are many ways to get in contact with ASCAP:
Mailing Address
ASCAP - New York
One Lincoln Plaza
New York, NY 10023
It would also be a good idea to keep the song's owner — Time Warner — in the loop. Here is their contact information:
Mailing Address
Time Warner Inc.
One Time Warner Center
New York, NY 10019-8016
If you're going to send a message, here's a sample letter. (Before sending such a letter, you should know that some restaurants, nightclubs, etc., pay for blanket ASCAP catalogue licenses that might exempt patrons from copyright liability for singing during dinner.) You'll want to modify yours to include correct details on the infringement:

The copyright status of "Happy Birthday To You" and the law
related to public performances of copyrighted works have recently been
brought to my attention. I am very concerned by the public's apparent
disregard for copyright law demonstrated by rampant infringement of
"Happy Birthday To You."

It is with this in mind that I wish to bring to your attention a
recent unauthorized public performance:

 -->> WHEN (e.g., December 10, 2004)
 -->> WHERE (e.g., at the Vol De Nuit at 148 West 4th Street in New York)
 -->> WHO (e.g., a group of patrons and the barstaff)

I hope that you are able to quickly follow up on this and to enforce
your copyright and extract the necessary royalties or licenses from
the offenders.

It is, in part, because of your lax and selective enforcement of your
copyright that most people do not realize that "Happy Birthday To You"
is even copyrighted at all.

In the event that you choose to continue selectively enforcing the
copyright in "Happy Birthday To You," for whatever reason, please
consider asking Congress to change copyright law to reflect the way that
most people view and interact with copyrighted works such as "Happy

Sincerely yours,
[/ end Sarcasm]

Unhappy Birthday - The Smiths

This article by law professor Robert Brauneis has raised some important  questions about the history of Happy Birthday. 

Have a Happy Birthday

Here's a website which gives personalized birthday songs. Check if your name is there.
Otherwise, you can request a song for yourself free.

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