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Ludwig Van
Toronto Montreal

CAPTAIN SENSIBLE | The Happy Birthday Copyright Fiasco – A Summary and Some Questions

By Michela Comparey on October 13, 2015

Excerpt of "Good Morning to All" a song written in the late 1800s published in a collection of songs titled "Harvest Hymns" (1924).
Image: “Good Morning to All” published in “Harvest Hymns” (1924).

A few weeks ago the song Happy Birthday made headlines when a federal judge in the United States ruled that its copyright was invalid. In case you missed all the hoopla surrounding that, here’s the Coles Notes version: The melody was first published in 1893, though with different words. The copyright wasn’t secured until 1935 when the sister of the original composer published it with the words of happy birthday with a publishing company. The copyright should have expired in 1991, but was repeatedly extended so that it wasn’t due to expire until 2030. Through various corporate takeovers, the copyright fell into the hands of Warner/Chappell Music, the largest American music conglomerate, who began enforcing the copyright in 1988.

Warner/Chappell made $2 million a year on royalties from the song. Any public performances, including stage productions, television shows and even greeting cards were liable to pay royalties. The strict enforcement of the copyright is what prompted many restaurants to make up their own happy birthday song because singing it to a patron on their birthday was considered a public performance for commercial purposes. In September, a judge ruled that the copyright only covered the original piano arrangement of the song.

This case brings up many questions. Copyright law is a huge topic and applies differently in different situations, and it is not always aligned with what the general public does. But I have to wonder, should songs such as happy birthday that play such an important role in our cultural traditions and ceremonies ever be subject to copyright? For example, most national anthems are not under copyright, though this is sometimes due to their age. O Canada was declared public domain by an act of Parliament in 1980 though this only covers the melody and words – unique arrangements of the tune can still be copyrighted.

Playing a national anthem, or happy birthday, in a movie is not going to make or break its box office revenue, but surely we want these reflections of our culture to be realistic. Could sports chants be copyrighted? Is the guy who wrote the “Ole Ole Ole” song so popular at soccer games kicking himself right now? Auld Lang Syne and For He’s a Jolly Good Fellow are both too old to be under copyright anymore. But couldn’t they all be considered cultural property, and as such, free for anyone to use?

You also can’t help but question the validity of a huge corporation extending a copyright for years and years. Aren’t copyrights put in place to protect people who create content? The sisters who are credited with writing the melody and words are long deceased, and the copyright was transferred to the publisher, not their descendants.

In another high-profile copyright case, Robin Thicke and Pharrell were ordered to pay millions of dollars to Marvin Gaye’s children after their song Blurred Lines was deemed to be infringing on the copyright. While online commentators question the validity of this case, at least in that ruling the royalties would be paid out to the artist’s descendants.

Warner/Chappell is planning to appeal the verdict, so it’s safe to say we’ll see this topic in the news again soon. In the meantime, it’s still ok (and always has been) to sing happy birthday at private parties. There was no mention of adding the jazzy ‘and many more’ at the end of the song, though, so you might want to check with your lawyer on that part first.

#LUDWIGVAN

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Ludwig Van Toronto

FEATURE | Elgin And Winter Garden Theatres Are An Enduring Testament To Toronto’s Entertainment History

By Anya Wassenberg on November 2, 2019

Toronto’s Elgin and Winter Garden Theatre are the last surviving double-decker theatres of the Edwardian era still in operation in the world.
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