[78-L] Happy Court Day to You

Fri Jun 14 16:16:05 PDT 2013

I don't think restaurants have any clue that the song is copyrighted, and Warner/Chappell is in such a disarray now that they can't go after every restaurant that decides to sing it. I doubt very much that restaurants are waving the red flag at W/C, daring them to charge. It's just part of the growing ignorance of copyright law in the entertainment world. There are tens of thousands of young composers who are sampling existing, copyrighted compositions without getting permission, and when they are asked about it, they get huffy and say it is their First Amendment right to use it, claiming "free speech." 99% of Americans have no concept of what copyright means - literally, "the right to copy." 
If the H.B. case goes to court and the court determines that all of the money W/C has been charging people for a public domain song for the last 78 years has been a fraud, can you imagine the implications? 
Cary Ginell

> From: mbiel at mbiel.com
> To: 78-l at klickitat.78online.com
> Date: Fri, 14 Jun 2013 16:10:34 -0700
> Subject: Re: [78-L] Happy Court Day to You
> 
> We've talked about this before.  Contrary to the opening of Cary's
> article, more and more I AM hearing restaurants singing the real Happy
> Birthday song.  They may have a license, but I really think they are
> daring W/C to sue them -- big money vs. big money.  Most of the threats
> are to small potatoes who will give in easily, but some of these
> restaurant chains have a lot of bucks backing them. I think this might
> be the suit that won't go away.  W/C licensed her for her film and I
> suppose only now they realized that they did not open the door to a
> friend.  If she can get this moved as a class action, LOOK OUT!!
> 
> Mike Biel  mbiel at mbiel.com  
> 
> 
> 
> -------- Original Message --------
> Subject: Re: [78-L] Happy Court Day to You
> From: Cary Ginell <soundthink at live.com>
> Date: Fri, June 14, 2013 6:11 pm
> To: "78-l at klickitat.78online.com" <78-l at klickitat.78online.com>
> 
> I wrote this article in Sept, 2003, which was published in Music
> Reports' "Smart Licensing" newsletter. I didn't think anybody would have
> the nerve to challenge Warner Chappell. Love this story!
> http://accounting.musicreports.com/smart_licensing/content_article.php?article_id=44&title=P.D.+or+Not+P.D.%3F+That+is+the+Question+-+The+Happy+Birthday+Controversy
> Cary Ginell
> 
> > Date: Fri, 14 Jun 2013 17:43:09 -0400
> > From: dlennick at sympatico.ca
> > To: 78-L at 78online.com
> > Subject: [78-L] Happy Court Day to You
> > 
> > About time somebody challeneged this ludicrous situation.
> > 
> > dl
> > 
> > > http://www.nytimes.com/2013/06/14/nyregion/lawsuit-aims-to-strip-happy-birthday-to-you-of-its-copyright.html
> > > <http://jazzpromoservices.us2.list-manage1.com/track/click?u=3186fe64133adb244b1010be2&id=233f64e8cc&e=dce4828319>
> > >
> > >
> > > Birthday Song’s Copyright Leads to a Lawsuit for the Ages
> > >
> > > Hiroko Masuike/The New York Times
> > >
> > > Jennifer Nelson, holding a 1924 songbook, “Harvest Hymns,” that includes the
> > > words “Happy Birthday to You” set to the music of “Good Morning to All,” a song
> > > written in the late 1800s.
> > >
> > >
> > > By BENJAMIN WEISER
> > > <http://jazzpromoservices.us2.list-manage.com/track/click?u=3186fe64133adb244b1010be2&id=d7b107d328&e=dce4828319>
> > >
> > >
> > > The song “Happy Birthday to You” is widely credited for being the most
> > > performed song in the world. But one of its latest venues may be the federal
> > > courthouse in Manhattan, where the only parties may be the litigants to a new
> > > legal battle.
> > >
> > >
> > > The dispute stems from a lawsuit filed on Thursday by a filmmaker in New York
> > > who is seeking to have the court declare the popular ditty to be in the public
> > > domain, and to block a music company from claiming it owns the copyright to the
> > > song and charging licensing fees for its use.
> > >
> > > The filmmaker, Jennifer Nelson, was producing a documentary movie, tentatively
> > > titled “Happy Birthday,” about the song, the lawsuit said. In one proposed
> > > scene, the song was to be performed.
> > >
> > > But to use it in the film, she was told she would have to pay $1,500 and enter
> > > into a licensing agreement with Warner/Chappell, the publishing arm of the
> > > Warner Music Group. Ms. Nelson’s company, Good Morning to You Productions, paid
> > > the fee and entered into the agreement, the suit says.
> > >
> > > “Before I began my filmmaking career,” Ms. Nelson said in an e-mail forwarded
> > > by her lawyer, “I never thought the song was owned by anyone. I thought it
> > > belonged to everyone.”
> > >
> > > The lawsuit notes that in the late 1800s, two sisters, Mildred J. Hill and
> > > Patty Smith Hill, wrote a song with the same melody called “Good Morning to
> > > All.” The suit tracks that song’s evolution into the familiar birthday song,
> > > and its ownership over more than a century.
> > >
> > > But although Warner/Chappell claims ownership of “Happy Birthday to You,” the
> > > song was “just a public adaptation” of the original song, one of Ms. Nelson’s
> > > lawyers, Mark C. Rifkin, said in a phone interview.
> > >
> > > “It’s a song created by the public, it belongs to the public, and it needs to
> > > go back to the public,” Mr. Rifkin said.
> > >
> > > A spokesman for Warner/Chappell declined to comment on the suit. The company
> > > paid $25 million
> > > <http://jazzpromoservices.us2.list-manage2.com/track/click?u=3186fe64133adb244b1010be2&id=7abc3d5bdc&e=dce4828319>
> > > in 1988 to acquire Birchtree Ltd., a small company whose musical holdings
> > > included the birthday song.
> > >
> > > Mr. Rifkin cited an estimate that Warner/Chappell collected approximately $2
> > > million per year in licensing fees for the song. He added that the suit asks
> > > that the firm return all the fees for the song it has collected in the past
> > > four years.
> > >
> > > The rich history of the song’s evolution and the conclusion that it might be in
> > > the public domain closely tracks the findings of Robert Brauneis, a professor
> > > at the George Washington University Law School and the author of a 68-page
> > > article titled “Copyright and the World’s Most Popular Song.”
> > >
> > > In the study, Professor Brauneis said that “it is doubtful that ‘Happy Birthday
> > > to You,’ the famous offspring of ‘Good Morning to All,’ is really still under
> > > copyright.”
> > >
> > > “I believe this song is in the public domain and therefore it is not owned by
> > > anyone,” Professor Brauneis said in a phone interview on Thursday. He said
> > > “Happy Birthday to You” was “economically significant” in that it “still
> > > produces millions of dollars of income in a year,” and that a successful legal
> > > challenge “might be a model for challenges to other songs.”
> > >
> > > He said that another of Ms. Nelson’s lawyers, Randall S. Newman, had spoken
> > > with him about his study, but that he was not a consultant in the lawsuit.
> > >
> > > Ms. Nelson is not the first documentarian to confront the issue of paying to
> > > use the Happy Birthday song. The filmmaker Steve James paid $5,000 to use the
> > > song in the acclaimed 1994 documentary “Hoop Dreams,” in which it is sung at a
> > > man’s 18th birthday party.
> > >
> > > “It was an important scene,” Mr. James said in a 2005 article
> > > <http://jazzpromoservices.us2.list-manage.com/track/click?u=3186fe64133adb244b1010be2&id=182d15dfec&e=dce4828319>
> > > in The New York Times, “there was some amazement that Arthur had made it to 18.
> > > Of course, we wanted that in.”
> > >
> > > Ms. Nelson, asked what she envisioned for her documentary, responded in the
> > > e-mail that her film would be about the “song’s history and its future.” The
> > > suit seeks to be given class-action status on behalf of all others who have
> > > paid licensing fees for it since 2009.
> > >
> > >
> > > A version of this article appeared in print on June 14, 2013, on
> > > page A24 of the New York edition with the headline: Birthday Song’s
> > > Copyright Leads to a Lawsuit for the Ages.
> > >
> > >
> > > 
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