“Happy Birthday” and the public domain

24th September 2015

The decision of the US District Court in California regarding the copyright in the lyrics to “Happy Birthday” is welcome and sensible.

The enforcement and collection of royalties for “Happy Birthday” has been, in my opinion (and here I am not implying anything criminal), little more than a racket.  A lawful racket, but effectively a racket all the same.

But it should be clear what the court ruled on, and did not rule on.

The court ruled that Warner Chappell could not establish that it had copyright in the lyrics to the song.  (The parties agreed that the melody was already public domain, and so the judge did not decide that point either, as it was not in contention.)

What the court did not decide (and was careful not to decide) was whether the lyrics were “public domain”.  The judgment left open the possibility – perhaps a theoretical one – that somebody somewhere had copyright in the lyrics.

It may be that the practical consequence of the ruling is that the words to “Happy Birthday” can be treated as now being public domain; but that is not what the court said or decided.

However – with the notable exception of the LA Times (whose journalist Christine Mai-Duc did an excellent and detailed report on the decision), most news outlets got this wrong.

“Breaking” but not correct.

Nope.

Still nope.

And nope – no it isn’t, “officially” or otherwise.

What appears to have happened is that the plaintiff lawyers’ press release (saying that the song could now be treated as if it was public domain – which is a fair opinion, but not what the court actually said) or some early news report got converted by somebody into saying that the court had ruled that the song was now public domain.

And then the media just copied and repeated each other.

Of course, the “does-it-matter-brigade” have a point; it is not the greatest error, and it may be effectively correct, though not strictly correct, to say the song is now in the public domain.

But legal accuracy is important, especially when reporting what the courts do and do not say, and it is reasonable to expect news media to report such things correctly; and in this case, both the judgment and accurate reporting were available.  There was no excuse for so much of the media to get this one wrong.

Never take news reports of legal things at face value; always look at the original sources if you can.

 

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10 thoughts on ““Happy Birthday” and the public domain”

  1. “Never take news reports of legal things at face value; always look at the original sources if you can.”

    Same with science news. And “arctic winter” scare stories. And anything to do with immigration, or the economy, or the national debt. In fact, what _do_ the national press actually report reliably?

  2. “Never take news reports of legal things at face value; always look at the original sources if you can.”

    You can drop that “legal things” from there. The same applies to most other things as well. Science, technology, politics. Probably even sports.

    The trouble is, with most things you are not the expert so you could tell.

  3. Effectively what was said was that there was a son entitled “Good Morning” that can be securely copyrighted by the original authors, both the words and the melody. At some later date, the melody became public domain, though the words did not.

    At some point between the composing of the Good Morning melody and 1901 (when the “Happy Birthday” lyrics are first set down on paper) someone devised the “Happy Birthday” lyrics. Nobody knows who this was, and although the “Good Morning” song and lyrics are attributed to the original authors in print, the “Happy Birthday” lyrics are are not thus credited.

    The racket all hinged on who held copyright over the “Happy Birthday” lyrics. As nobody seems to know who composed those lyrics, nobody can therefore hold the copyright, and as those who ran the racket depended on this copyright their hold is broken.

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