Sing It!
Judge Rules Warner-Chappell Does Not Own Copyright in “Happy Birthday” Lyrics

Yesterday a federal judge ruled that Warner-Chappell does not own copyright in the lyrics to the song “Happy Birthday.” The lawsuit addressed only the lyrics, as the parties agreed that the music passed into the public domain long ago. The opinion is a beast, weighing in at a very dense 43 pages, and leaves the reader hanging until the very last minute.

The court addresses several issues, concluding (1) there is a genuine issue of material fact as to the authorship of the “Happy Birthday” lyrics; (2) there is a genuine issue of material fact as to whether a divestive publication of the “Happy Birthday” lyrics occurred (specifically, whether the lyrics were the subject of an authorized “general publication” under the Copyright Act of 1909 that divested the lyrics of common-law copyright protection); (3) there is a genuine issue of material fact as to whether the purported author abandoned her copyright in the lyrics; and, finally, (4) there is insufficient evidence to establish that the purported author ever transferred her rights in the lyrics to Warner-Chappell’s predecessor-in-interest.

It is important to note that, contrary to various assertions by commentators online, that the opinion does not hold that the lyrics are in the public domain. This is perhaps a wonky copyright distinction, but one that is substantively very important. The ruling holds only that Warner-Chappell does not own copyright in the lyrics. It is at least theoretically possible that some other party could come forward and establish ownership. This seems fairly unlikely, given that the song was authored in 1893 and solid evidence regarding chain of title has faded into the mists of time.

The resulting uncertainty highlights the problem of “orphan works” – works as to which it is very difficult, if not impossible, to establish ownership. The orphan works problem plagues many would-be users of works, who cannot identify or locate the owners of works they may wish to license. There have been many calls for a legislative fix of the “orphan works” problem, and we can only hope that Congress takes it up as part of the broader need for copyright reform.

In the meantime, happy birthday to everyone!

From “Happy Together” to “Eve of Destruction”
Turtles Seek to Upend Streaming Business Models for Pre-1972 Sound Recordings

On Friday I had the privilege of speaking at the AIPLA Spring Meeting in Los Angeles on the subject of pre-1972 sound recordings and the current series of lawsuits brought by the successors of the Turtles against Sirius XM regarding royalties over pre-1972 sound recordings.  Copyright law in the United States is almost exclusively governed by the federal Copyright Act, which preempts equivalent state laws.   As originally drafted, however, federal copyright law did not extend copyright protection to sound recordings, leaving those works to be regulated by the states.  Congress amended the copyright law in 1972 to add federal protection for sound recordings, but it granted this protection on a prospective basis only.  Sound recordings fixed before February 15, 1972 thus remain subject to state law. A series of lawsuits brought by Flo & Eddie, Inc. (“Flo & Eddie”), the entity that owns the copyrights for sound recordings created by the 1960s rock group the Turtles, is upending rules thought long established regarding performance rights of pre-1972 sound recordings under state law. Continue reading »

Pandora’s Box:
Turtles Actions Threaten to Upend Music Streaming Models

Copyright law in the United States is almost exclusively governed by the federal Copyright Act, which preempts equivalent state laws.  As originally drafted, however, the Copyright Act of 1976 – the current iteration of the Act – made an exception for sound recordings fixed before February 15, 1972, leaving those works to be regulated by the states.   State law thus applies to determine the rights and remedies available to the copyright owner of pre-1972 sound recordings. Continue reading »