Happy Birthday, pay up!

Via the Patry Copyright Blog, a site that is a far more organized approach to "Happy Birthday" than is this site to "K Cera Cera (mp3)." It's Robert Brauneis's collection of appendices, documents, and sound recordings relevant to his article "Copyright and the World's Most Popular Song," which, according to Professor Patry, is "67 and a half pages of history of the song and the copyright issues surrounding it." According to Brauneis's abstract:

"Happy Birthday to You" is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became "Happy Birthday to You," originally written with different lyrics as "Good Morning to All," was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.

The falsity of the standard story about the song demonstrates the dangers of relying on anecdotes without thorough research and analysis. It also reveals collective action barriers to mounting challenges to copyright validity: the song generates an estimated $2 million per year, and yet no one has ever sought adjudication of the validity of its copyright.

There seem to be an awful lot of false assumptions in copyright law based, no doubt, on convention. Copyright overclaiming constitutes one product of these false assumptions. So too does the assumption, based on current practices, that any sample of a recording must be licensed.

Patry on Appropriation Art

Patry on Copyright
Database updated March 2008
William F. Patry
Chapter 10. The Fair Use Defense

Appropriation art poses very difficult problems for fair use, including whether it constitutes a comment, criticism, or parody.[FN1] The answer to that question is complicated in the case of appropriation art by its very essence, a conceptual statement, rather than a classic transformative use. Both artists and judges have very different about how appropriation fits into fair use: is it a well-recognized form of artistic expression, or is it piracy? In Rogers v. Koon,[FN2] as Judge Posner and Professor Landes have observed: "From the perspective of copyright law the very term "Appropriation Art" is a provocation; "appropriation" of a copyrighted works connotes stealing."[FN3] If art is in the eye of the beholder, such fair use appropriation art is even more so.

[FN1] See William Landes, Borrowed Images, and Appropriation Art: an Economic Approach, 9 Geo. Mason L. Rev. 1 (2000).

[FN2] Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).

[FN3] Landes and Posner, The Economic Structure of Intellectual Property Law, 261 (2003). See also Landes and Posner, The Economic Structure of Intellectual Property Law at 262-229. It should be noted that this is not Landes and Posner's own view; they believe the Koons case was incorrectly decided.

Is fair use a question of law or a question of fact?

“[W]here the case is tried on stipulated facts, or both sides cross-move for summary judgment, there is no reason why the court may not decide the issue as a matter of law; indeed, fair use is frequently decided on summary judgment. On rare occasions, courts have decided fair use on a rule 12(b)(6) motion to dismiss for failure to state a claim. 4 Patry on Copyright § 10:159 (citations omitted; emphasis added).