No More Royalties for “Happy Birthday”

Birthday Song
(from court documents)

Restaurants, business owners, authors and producers no longer have to pay a copyright royalty to perform the “Happy Birthday” song. A federal district court judge has ruled that Warner/Chapelle Music Inc., which has been claiming ownership of the copyright in the song – and charging royalties for its use — does not own the copyright, after all.

Background

Patty and Mildred Smith wrote a song called “Good Morning To All” in the nineteenth century. Originally intended for use in a kindergarten classroom, the lyrics were: “Good morning to you / Good morning to you / Good morning, dear children / Good morning to all.” They published the song in a book, and assigned the copyright to their publisher, the Clayton F. Summy Company.

The Summy Company registered a copyright claim to the song, “Happy Birthday To You” in 1935. Warner/Chapelle succeeded to that claim.

Warner/Chapelle argued the 1935 registration secured ownership of copyright in the lyrics as well as the music. The judge ruled, however, that even if the Summy Company acquired rights to the melody, there was no evidence the Summy Company ever acquired the copyright to the lyrics.

Melody vs. lyrics

The melody for the famous birthday song has been in the public domain for over half a century, the copyright registration having expired in 1949. This meant that anyone could use the song in their business, or in a greeting card, musical composition, sound recording or audiovisual work, provided they used different lyrics. Because Warner/Chapelle claimed ownership of the copyright to the lyrics, the company maintained that anyone wishing to publicly perform, publish or record the words to the song (“Happy birthday to you,” etc.) needed to pay a royalty. Warner has collected millions of dollars of royalties for the lyrics to this song.

Very likely in the public domain

Many reporters are saying the song is now “in the public domain.” This is not accurate. The ruling means that Warner/Chapelle has failed to establish a right to claim royalties for the song, or the lyrics to it. The fact that the Hill sisters did not convey the copyright to the lyrics to the Summy Company simply means that the long-time lyrics rights-claimant Warner/Chapelle cannot assert ownership. It does not mean that nobody else can. In theory, if it can be proven that someone else wrote it, and that the first authorized publication occurred  after 1923, and that all copyright requirements that existed at all relevant times have been met, then that person, or his  successor(s) in interest, may own the copyright to the lyrics. That will not be an easy thing to do, given the existence of a songbook containing the lyrics to “Happy birthday to you,” purporting to have been published “with permission,” with a publication date of 1922 appearing on it.

It’s a Wonderful Blog List

(RKO release poster, 1946)

(RKO release poster, 1946)

Those in the over-thirty crowd probably have many fond and/or maddening memories of flipping channels throughout the Christmas season to decide which network broadcast of It’s a Wonderful Life to watch. The reason it was on so many channels is that television stations could broadcast it royalty-free. So they did. A lot.

Why could they broadcast it royalty-free? Surprisingly, it seemed to be in the public domain. Before the Copyright Act of 1976 established a single-term copyright measured by the life of the author plus 50 years (later extended to 70), copyrights only lasted for a period of 28 years from the date of first publication. They could be renewed for a second 28-year term, but the renewal had to take place during the last year of the original term. If that didn’t happen, then it entered the public domain, meaning that anyone could copy it, distribute it, and broadcast it without having to pay any royalties to the actors, director, writer, or anyone else. The company that acquired the rights to It’s a Wonderful Life neglected to renew the copyright. That’s why television networks began broadcasting it as often as they could, beginning in the 1970’s.

The party came to an end in the 1990’s when the company asserted a claim to the copyright in the underlying literary work on which the movie was based (a pamphlet called The Greatest Gift.) For the past few years, the movie has been licensed only to NBC for television broadcast.

The requirement that copyright renewal must occur during the 28th year of the original term – and only during the 28th year of the original term — has caused quite a wealth of copyrighted matter to enter the public domain accidentally or unexpectedly. Although the Copyright Act of 1976 did away with the renewal system, it did not apply retroactively.

For those with an interest in this arcane topic, here is a non-comprehensive list of movies that appear to have entered the public domain.1

• Angel and the Badman (1947) (failure to renew)2
• The Animal Kingdom (1932) (failure to renew)3
• Algiers (1938) (failure to renew)4
• Beau Brummel (1924) (failure to renew)5
• Beau Ideal (1931) (failure to renew)6
• Behind Office Doors (1931) (failure to renew)7
• Bird of Paradise (1932) (failure to renew)8
• Birth of a Nation (1915) (expired)
• Birth of the B-29 (ca. 1943) (U.S. government work)9
• Blood on the Sun (1945)10
• The Brain That Wouldn’t Die (1962) (published without copyright notice)11
• Brideless Groom (1947) (failure to renew)12
• Carnival of Souls (1962) (published without copyright notice)13
• Charade (1963) (published without full copyright notice)14
• Check and Double Check (1930) (failure to renew)15
• Combat America (1943) (U.S. government work)
• Conspiracy (1930) (failure to renew)16
• The Dance of Life (1929) (failure to renew)17
• Danger Lights (1930) (failure to renew)18
• The Deadly Companions (1961) (missing copyright notice)19
• Debbie Does Dallas (1978)20
• Detour (1945) (failure to renew)21
• Disorder in the Court (1936) (failure to renew)22
• Dixiana (1930) (failure to renew)23
• D.O.A. (1950) (failure to renew)24
• Father’s Little Dividend (1951) (failure to renew)25
• A Farewell to Arms (1932) (failure to renew)26
• The Fight for the Sky (1946) (U.S. government work)
• The General (1927) (failure to renew)27
• The Gold Rush (1925) (failure to renew)28
• Gulliver’s Travels (1939) (failure to renew)29
• Half Shot at Sunrise (1930) (failure to renew)30
• Hemp for Victory (1942) (U.S. government work)
• His Girl Friday (1940) (failure to renew)31
• Hook, Line and Sinker (1930) (failure to renew)32
• The Impossible Voyage (1904) (expired)
• Intolerance (1916) (expired)
• Inside the Lines (1930) (failure to renew)33
• It’s a Wonderful Life (1946) (failure to renew)34
• The Lady Refuses (1931) (failure to renew)35
• A Lady to Love (1930) (failure to renew)36
• Last Clear Chance (1959) (not registered)37
• The Last Time I Saw Paris (1944) (failure to renew)38
• Lawful Larceny (1930) (failure to renew)39
• Letter of Introduction (1938) (failure to renew)40
• Life with Father (1947) (failure to renew)41
• The Little Princess (1939) (failure to renew)42
• The Little Shop of Horrors (1960) (failure to renew)43
• Lonely Wives (1931) (failure to renew)44
• Love Affair (1939) (failure to renew)45
• Malice in the Palace (1949) (failure to renew)46
• March of the Wooden Soldiers (1948) (failure to display copyright notice)47
• McLintock! (1963) (failure to renew)48
• Mr. Imperium (1951) (failure to renew)49
• My Favorite Brunette (1947) (failure to renew)50
• Nanook of the North (1922) (expired)
• Night of the Living Dead (1968) (omission of copyright notice on copies)51
• Nothing Sacred (1937) (failure to renew)52
• The Outlaw (1943) (failure to renew)53
• The Painted Hills (1951) (failure to renew)54
• The Pay-Off (1930) (failure to renew)55
• The Perils of Pauline (1914) (expired)
• The Phantom Carriage (1921) (expired)
• The Phantom of the Opera (1925) (failure to renew)56
• Rain (1932) (failure to renew)57
• Rebecca of Sunnybrook Farm (1917) (expired)
• Reefer Madness (1936) (improper copyright notice)58
• Rock, Rock, Rock! (1956) (failure to renew)59
• The Royal Bed (1931) (failure to renew)60
• Santa Fe Trail (1940) (failure to renew)61
• The Secret Hour (1928) (failure to renew)62
• Sherlock Holmes Baffled: The Enchanted Drawing (1900) (expired)
• Sin takes a Holiday (1930) (failure to renew)63
• Sing a Song of Six Pants (1947) (failure to renew)64
• Sinners in Paradise (1938) (failure to renew)65
• Smouldering Fires (1925) (failure to renew)66
• A Star Is Born (1937) (failure to renew)67
• Swing High, Swing Low! (1937) (failure to renew)68
• Teenagers from Outer Space (1959) (failure to renew)69
• The Terror (1963) (no registration?)70
• Three Came Home (1950) (failure to renew)71
• Three Guys Named Mike (1951) (failure to renew)72
• Till the Clouds Roll By (1946) (failure to renew)73
• Topper Returns (1941) (failure to renew)74
• A Trip to the Moon (1902) (expired)
• Vengeance Valley (1951) (failure to renew)75

Remember that even if a movie is in the public domain now, the literary text on which it is based might not be. And the same is true of any musical compositions performed in a movie. So before you start making your own version of Night of the Living Dead, or selling tickets to a public performance of Debbie Does Dallas, be sure to investigate the copyright status of the musical and literary works embedded in them first.

 

  1.  This list only applies to the motion picture itself. Other works embedded in it, such as a musical composition, or a book on which the movie is based, may still be protected by copyright.
  2. Pierce, David Legal Limbo: How American Copyright Law Makes Orphan Films (March 29, 2001.) Orphans of the Storm II: Documenting the Twentieth Century. Retrieved January 5, 2012.
  3. Pierce, David. “Forgotten Faces: Why Some of Our Cinema Heritage Is Part of the Public Domain.” Film History: An International Journal 19 (2): 125–43 (June 2007.)
  4. Id.
  5. Id.
  6. Id.
  7. Id.
  8. Id.
  9. Works created by the U.S. government are not protected by copyright.
  10. Pierce (2001), supra note 2.
  11. At one time, publishing copies of a work without the copyright notice on them could cause the work to enter the public domain. This requirement was abolished for works first published on or after March 1, 1989.
  12. Hogan, David J. Three Stooges FAQ: Everything Left to Know about the Eye-Poking, Face-Slapping Head-Thumping Geniuses (2011).
  13. Blake, Marc. Writing the Horror Movie 91 (2013)
  14. Pierce (2007), supra note 3.
  15. Id.
  16. Pierce (2007), supra note 3.
  17. Id.
  18. Id.
  19. Erickson, Hal. “Early Salvos from ‘Bloody Sam’: New DVDs, Peckinpah’s Deadly Companions and Major Dundee,” New York Times (May 10, 2013)
  20. M & A Associates v. VCX, 657 F. Supp. 454 (E.D. Mich. 1987)
  21. Herzogenrath, Bernd. The Films of Edgar G. Ulmer 151 (2009).
  22. Hogan, supra note 12.
  23. Pierce (2007), supra note 3.
  24. Researching the Copyright Status of a Work, http://chart.copyrightdata.com/ch17.html
  25. Pierce (2007), supra note 3.
  26. Id. Remakes of this movie may not be in the public domain.
  27. Fishman, Stephen. The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More 174-180 (5th ed. 2010.)
  28. Id.
  29. Miller, John M. “Mr. Bug Goes to Town aka Hoppity Goes to Town,” Turner Classic Movies (June 14, 2015); Kehr, David, “Classics From Disney and a Lilliputian Competitor,” New York Times (March 6, 2009.) Retrieved October 26, 2013.
  30. Pierce (2007), supra note 3.
  31. Fishman, supra note 27.
  32. Pierce (2007), supra note 3.
  33. Id.
  34. Id.
  35. Id.
  36. Id.
  37. Prelinger, Rick. The field guide to sponsored films 52 (National Film Preservation Foundation 2006.)
  38. Researching, supra note 24.
  39. Pierce (2007), supra note 3.
  40. Id.
  41. Erickson, Hal, “Life with Father Overview,” New York Times (June 14, 2015)
  42. Pierce (2007), supra note 3.
  43. Fishman, supra note 27; Pierce (2007), supra note 3.
  44. Pierce (2007), supra note 3.
  45. Id.
  46. Hogan, supra note 12.
  47. Pierce (2007), supra note 3.
  48. Fishman, supra note 27 at 337; “Court Rules for ‘Goodtimes’ in McLintock! Case,” Billboard 73 & 82 (May 14, 1994)
  49. Pierce (2007), supra note 3.
  50. Pierce (2001), supra note 3.
  51. Boluk, Stephanie; Lenz, Wylie. Introduction: Generation Z, the Age of Apocalypse. In Boluk, Stephanie; Lenz, Wylie. Generation Zombie: Essays on the Living Dead in Modern Culture 5 (2011).
  52. Fishman, supra note 27.
  53. Pierce (2007), supra note 3.
  54. Id.
  55. Id.
  56. Id.
  57. Pierce (2001), supra note 2.
  58. Anderson, Patrick, High in America: the true story behind NORML and the politics of marijuana 101 (1981); Shaye, Robert. Graduation 2003 (May 22, 2003)
  59. Pierce (2007), supra note 3.
  60. Id.
  61. 7 Filmmakers Newsletter (Suncraft International Inc. 1973)
  62. Pierce (2007), supra note 3.
  63. Id.
  64. Hogan, supra note 12.
  65. Pierce (2007), supra note 3.
  66. Id.
  67. Id.; Fishman, supra note 27. Remakes may not be in the public domain.
  68. Pierce (2007), supra note 3.
  69. Fishman, supra note 27.
  70. Ray, Fred Olen, The New Poverty Row: Independent Filmmakers as Distributors 51 (1991).
  71. Erickson, Hal, “Three Came Home Overview,” New York Times (June 14, 2015)
  72. Pierce (2007), supra note 3.
  73. Id.
  74. Id.
  75. Id.

Now you too can write Sherlock Holmes mysteries! (Maybe)

Holmes_-_Steele_1903_-_The_Empty_House_-_The_Return_of_Sherlock_Holmes(Illustration by Frederic Dorr Steele, 1903, PD-US)

Do you have a restless urge to write Sherlock Holmes mystery stories? If so, the U.S. District Court for the Eastern Division of the Northern District of Illinois has some good news for you: Holmes, Watson, and even Professor Moriarty are now in the public domain. In fact, all Arthur Conan Doyle detective stories published before 1923 are in the public domain.  This means that you are now free to write, publish and sell Sherlock Holmes mystery stories without having to secure a license or permission from the Doyle estate.

The ruling was issued in a case commenced by Leslie S. Klinger to determine his rights to copy and make derivative works using certain elements in the series of Sherlock Holmes detective stories originally penned by Sir Arthur Conan Doyle. Klinger is the co-editor of In the Company of Sherlock Holmes, a collection of Sherlock Holmes stories written by various authors. According to the complaint, Pegasus Books had decided not to go forward with publishing the book after it received a letter from the Doyle estate advising that it would seek to prevent the book from being sold by retailers unless it received a monetary payment. Klinger filed a complaint requesting a declaratory judgment that  the Sherlock Holmes characters are in the public domain. Chief Judge Ruben Castillo ruled in his favor, and granted the request. <<http://freesherlock.files.wordpress.com/2013/12/klinger-order-on-motion-for-summary-judgment-c.pdf>>

The ruling is subject to two important caveats. First, it only applies to Sherlock Holmes stories that are in the public domain. Although all of Doyle’s Sherlock Holmes stories are already in the public domain in Britain, not all of them are in the public domain in the U.S. In the U.S., only those stories that were published before 1923 are in the public domain. Any new information about Holmes, Watson, or any of the other characters in the detective series, remains protected by copyright, to the extent it was first disclosed in a story published after 1923. For example, the detail that Watson had a second wife is still protected by copyright. An American writer aspiring to be “the next Arthur Conan Doyle,” therefore, should take care to ensure that any dialogue, character and sequence elements he wishes to copy were either published before 1923, or entered the public domain since then.

Determining when a literary work that received copyright protection at some time in the past has entered the public domain is not always easy. Different rules apply depending on when and how the work was created (there are special rules about joint authorship, works for hire, and works written anonymously or under a pseudonym), and also depending on whether and when the work has been published or registered. In general (and assuming full compliance with all relevant copyright notice requirements), the copyright term for an uncommissioned work authored by one non-anonymous person was 28 years, renewable for a second term of 28 years, if the work was published or registered before January 1, 1978. Congress extended the length of the second term to 47 years for all copyrights that were still in existence on January 1, 1978. On October 27, 1998, Congress extended the second term to 67 years, for those copyrights that were still in existence at that time. Applying these rules, any such works published before 1923 are now in the public domain. And since Doyle’s last Sherlock Holmes mystery was published in March, 1927, they all will have entered the public domain by 2023.

The second caveat is that a character or other element of a literary work may be protected under other law even if it has entered the public domain for purposes of copyright law. For example, an author who ghostwrites Sherlock Holmes stories and tries to pass them off to the public as having been written by Mr. Doyle himself faces potential liability under state and federal trademark, fraud and unfair competition laws. And even an author who publishes Sherlock Holmes stories under his own name might be liable for trademark dilution if the famous Sherlock Holmes character is determined to be a trademark and if the author’s writing diminishes its value to the trademark owner.

Of course, you can avoid these risks altogether by simply creating your own characters, dialogue and plot sequences. Who knows? You may even come up with an idea for a story, or a series of stories, with so much lasting literary merit that someday you will be the author whose works other people are clamoring to copy.