Posts

Happy Birthday, You’re Sued!

The mere filing of a copyright case doesn’t usually make a major splash in the media but when it involves the most performed song in the world, even The New York Times takes notice.  Apparently, filmmaker, Jennifer Nelson, was making a documentary about the song, “Happy Birthday to You” and didn’t like the idea that Warner/Chappell Music insisted on her taking a $1500 license to use the song in the film as she – and probably most people – think it’s in the public domain.  So yesterday, Ms. Nelson filed a birthday suit of sorts: an action in federal court seeking a declaratory judgment that the song is, in fact, in the public domain and no permission is needed to use it.

So, in little more than the time it takes to sing the song, I’m going to use it as a way to review a few basic copyright law principles that are sometimes misunderstood. Let the questions begin!

What is the public domain? The public domain is the body of works, music, novels, plays, texts, etc., that is no longer (or never was) protected by copyright and is therefore free for anyone to use or adapt.

When is a song in the public domain? As they say in Facebook status land, “it’s complicated.”  For songs written since 1978, a U.S. copyright lasts for the life of the author (or last surviving author if there’s more than one) plus seventy years. If there’s no author, such as a work-for-hire, the term is 95 years. For older works, the U.S. used to have a system of an initial term and then the copyright had to be renewed for, you guessed it, the “renewal term.” For these older copyrights, the initial term was 28 years and the renewal term, through various extensions, was increased to 67 years, for a total of 95 years.  There’s more to it than this, but basically, if a work was written prior to 1923, it’s most likely in the public domain here. Maybe you’re thinking that’s an awfully long time when the Constitution says that copyrights are supposed to be “for limited times.” Larry Lessig thought so when he challenged the 1998 Sonny Bono Copyright Term Extension Act but the U.S. Supreme Court strongly disagreed.

Do I need to get a license to sing “Happy Birthday to You” to my kid at my backyard barbecue? Even assuming the song is still under copyright – and as we’ll soon see that’s a big assumption – the answer is still “no.” U.S. Copyright law gives copyright owners a certain bundle of rights. Among them is the exclusive right to authorize “public performances.” A backyard barbecue, a birthday party in your basement and most other gatherings among “a normal circle of a family and its social acquaintances” is a private performance for which no permission is needed.

What if I sing the song at a gig or at a party of 500 of my closest friends and acquaintances? You’re probably safe to sing the song – or any other copyrighted song. Most public venues where music is performed (concert and catering halls, clubs and stadiums) or broadcast (TV and radio stations) have licenses from “performing rights organizations” such as ASCAP, BMI and SESAC. These companies issue “blanket” licenses to venues and broadcasters (and web sites, too) which allow the licensee to perform all the works in their respective repertories as much as they want.

Why would a filmmaker need a license? The permission that Warner/Chappell sought from Ms. Nelson for her film is known as a “synchronization” or “synch” license because the user is synchronizing music to picture. Whenever a pre-existing copyrighted song is used in any audio-visual work, such as a film, TV show, TV ad or videogame, a synchronization license is required from the copyright owner, usually a music publisher. If you’re using pre-recorded music, then you need permission from both the music publisher of the song and the copyright owner of the recording, typically a record label.

What if I post a video of my kid dancing to a Justin Bieber song? Putting aside issues of taste, technically, you’d need synch licenses from the music publisher(s) of the song and from The Bieb’s label although the actual performance of the video may be covered if the site has licenses from the performing rights organizations. As a practical matter, unless your home video is generating millions of views or you’re selling truckloads of DVDs it’s unlikely that anyone will come after you for a technical violation.

So, is “Happy Birthday to You” in the public domain? That’s for the court to decide, but if the facts are as alleged in the complaint and as cited in the  news reports and elsewhere, it seems that the song would be “PD” as we music types say.  The melody is said to come from a song called “Good Morning to All” written in 1893 and, the combination of music and lyrics is said to have appeared in print in 1912, possibly earlier. By my reckoning, if these are the facts, both 1912 and 1893 are prior to 1923. At least one legal scholar, Richard Brauneis, has written a 68-page article (with 320 footnotes!) in which he concludes that the song is in the public domain.

How can Warner / Chappell claim the song is still under copyright? Again, the facts will play out in the lawsuit, but it seems that W/C has a 1935 copyright registration, crediting different writers as the creators of the song. The complaint alleges that this registration is for a piano /vocal arrangement of the song.  Another of the things in the “bundle of rights” a copyright owner gets is the right to make a “derivative work” of the underlying work, such as an arrangement or adaptation. Turning a novel into a film constitutes making a derivative work, which is why the novelist gets paid when the film is made.

For example, the song “Simple Gifts” is a Shaker hymn from the nineteenth century.  Most people know it from Aaron Copland’s arrangement of the tune in his ballet, “Appalachian Spring.” As the original song is PD, anyone can perform the original melody and lyrics or make their own arrangement. But, if you want to use Mr. Copland’s treatment of the work you’ll need permission from Copland’s publisher, Boosey & Hawkes.  So, if the underlying song, “Happy Birthday to You” turns out to be in the public domain, anyone can use it and make their own arrangement of it, as long as they don’t use any particular copyrighted arrangement of the work, such as ones owned by Warner / Chappell.  And, of course, you can write a new song, with your own melody and lyrics, and call it “Happy Birthday to You” as titles are not copyrightable.

Why The Obama Big Bird Ad’s Going Bye-Bye

Since last week’s Presidential debate, Big Bird’s eight-foot high profile has grown even larger.  It started with a comment that Republican contender, Gov. Mitt Romney, made to the moderator, Jim Lehrer of PBS , about cutting federal funding for PBS programs, including Lehrer’s own NewsHour and Sesame Street. Mr. Romney specifically singled out Big Bird for the budget ax.  Thereafter, Big Bird, who claims he’s normally in bed well before 11:30 p.m., made a guest appearance on Saturday Night Live’s Weekend Update to address the issue.  Being non-partisan, however, Mr. Bird declined to make any political pronouncements, stating, “No, I don’t want to ruffle any feathers.”

Unfortunately, he’s managed to do so, courtesy of a TV ad from President Obama’s campaign.  Prominently featuring Big Bird and the familiar green Sesame Street  sign, the ad has a satiric quality to it that one doesn’t typically see in Presidential campaign ads. It seemed, at least to me, more like one of the fake ads produced by Saturday Night Live. But it’s real and Sesame Workshop, the company that owns the rights to Sesame Street and its many characters, made it known that they are not amused.

Sesame Workshop’s demand that the Obama campaign cease using the Big Bird ad has been widely publicized.  But you might well ask, “doesn’t the President’s campaign have a First Amendment right to use Big Bird?” After all, “political speech” is the very core of our right to free speech.  And wouldn’t the use of Big Bird constitute “fair use” under copyright law? Wouldn’t it be considered a protected “parody”?

Well, probably not. Let’s first look at “fair use,” something that’s often misunderstood. Much ink has been spilled in recent years over so-called “fair use rights.” Actually, “fair use,” which is codified in Section 107 of the Copyright Act, is a defense to copyright infringement – not a “right.” And one of the purposes of “fair use” is to balance first amendment speech rights with copyright law’s limited monopoly.  Section 107 does state that use of a work may be “fair use” when used “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research….” Moreover, the courts have repeatedly held that there are no black line rules for determining fair use and that each decision is to be made on a case-by-case basis through an analysis of Section 107’s four factors. These include the “the purpose and character of the use”, such as whether it’s a “commercial use” and how much of the underlying work is used in the allegedly infringing work.  More recent cases also look to see if the use is “transformative,” meaning that the underlying work is not merely reproduced but is used in a new way.

One thing’s clear: just because it’s a political ad doesn’t mean you can use someone else’s copyrighted work.  The First Amendment guarantees free speech, but it doesn’t give you the right to freely use someone else’s speech.  A few years ago, Joe Walsh of The Eagles sued Joe Walsh the Congressional candidate over the use of one of his songs in a TV ad.  Many composers won’t allow their works to be used for political purposes. For example, Aaron Copland’s estate won’t allow the use of the iconic “Fanfare for the Common Man” to be used in political campaigns. A few years ago, when I was at Boosey & Hawkes, I was able to slap Comedy Central on the wrist for an unauthorized use of the Copland anthem on The Daily Show that was discovered by my staff. The result: a hefty license fee and some tickets to a taping of the show.

So what about the Big Bird ad? The use of the clip of Gov. Romney from the Presidential debate is likely  a fair use. It’s a short clip of a public, newsworthy event and the ad is commenting on Gov. Romney’s views and criticizing them.  With respect to Big Bird, it’s a bit more tricky.  He’s not the subject of the criticism, but his name and likeness is being used to criticize Gov. Romney’s statements.  And there’s an awful lot of Big Bird in the ad.

But, isn’t it a “transformative” use? After all, parody is one of the uses that may be considered transformative.  But, sometimes a parody is not a parody in the legal sense. The 1994 Supreme Court case of Campbell v. Acuff-Rose Music, Inc. (involving 2 Live Crew’s unauthorized use the Roy Orbison hit, “Oh, Pretty Woman” in one of its songs) and many subsequent cases, hold that a new work is a protected parody under copyright law only when it is commenting on, i.e., parodying, the underlying original work.  In the 2 Live Crew case, the Supreme Court found that the rap group’s song did, in fact, comment upon the Orbison hit.  In the Obama ad, it appears that the parody is directed not at Big Bird (the underlying copyrighted work), but at Gov. Romney. That would tend to defeat the parody defense. For example, it’s not a legally protected “parody” if you take a popular song and merely change the lyrics to comment on some topical issues of the day as opposed to scorning the song itself. But what about Weird Al Yankovic? Actually, Weird Al gets permission from the copyright owners of the songs he “parodies.”  And, as the Supreme Court noted in the 2 Live Crew case, the parody doesn’t have to be either good or funny.

So, it’s murky at best under copyright law as to whether the Obama campaign can use Big Bird in its ad without permission.  But it doesn’t end there. Remember the “Sesame Street” street sign? Sesame Workshop has a trademark in that famous logo.  Not surprisingly, there’s a “fair use” provision in the federal trademark act (that’s Section 33(b)(4) of the Lanham Act for you footnote freaks) and the courts construing it typically consider three factors, including whether the use of the mark suggests sponsorship or endorsement by the owner of the trademark.  Under that test, it looks like Sesame Workshop has a legitimate gripe about the use of its trademark “endorsing” the President’s position.

And remember, I mentioned the use of Big Bird’s “name and likeness.” That’s typically an area of law known as the right of publicity, which allows celebrities, often very dead ones, to make lots of money off of their name and likeness and to prevent others from cashing in without their consent.  However, unlike copyright and trademark, the right of publicity is a matter of state law, not federal law, and every state’s law is different. And while I know of cases where actors portraying fictional characters have successfully made publicity claims (e.g., George Wendt and John Ratzenberger suing over a “Norm” and “Cliff” robot impersonators), I’m not aware of any right of publicity cases involving characters such as the likes of Big Bird, Mickey Mouse or Spiderman.

So, the Big Bird ad, on intellectual property law grounds, is likely to fly the coop. However, that’s not why it’s going bye-bye. While I’m sure the lawyers working for the Obama campaign know that they’re not on solid ground, the Sesame Workshop folks aren’t likely to file a lawsuit. For one, Sesame Workshop’s gotten a lot of favorable free publicity.  But more importantly, the Big Bird brouhaha has a shelf life that will last only until the October 11 Vice Presidential debate and I suspect both sides know this and don’t want to spend a lot of money fighting over something so ephemeral.  Even if there weren’t any legal issues, I’d be very surprised if the Big Bird ad continues to air after this week, by which time it’ll be as fresh as last week’s leftover chicken.