Copy, Copy?

Interesting things going on in the world of copyright these days.

Rather famously, Warner/Chappell has been collecting licensing fees for Happy Birthday for years, earning as much as $2 million a year. (Note that the copyright used as the basis of their business applied only to the lyrics; the tune has been in the public domain for decades.)

One amusing side effect of Warner/Chappell’s licensing policies has been the creation of a number of scenes in movies and television shows where celebrants sing songs written for the show without ever addressing how everyone knows a song. For example.

Less amusingly, lawsuits have ambled slowly through the court system. The latest, filed in 2013, has finally concluded, and the result, in short, is that Happy Birthday is now officially in the public domain.

If I’ve followed the ruling correctly (IP lawyers, feel free to jump in with corrections or clarifications), it boils down to three main points: The lyrics have been traced back to multiple uncopyrighted publications prior to the 1935 publication that was the basis of Warner/Chappell’s claim; the court has ruled that there is insufficient evidence to show that the 1935 copyright applies to the lyrics, rather than to its new piano arrangement; and there is no evidence that shows that rights to the lyrics were ever transferred from the song’s creators to Summy Co. (and thus to Warner/Chappell when Summy Co. became part of Warner/Chappell).

The laws surrounding copyright have changed many times since Happy Birthday was written, so I’m not sure there’s a lesson here for modern composers and lyricists beyond the obvious “keep your documentation trail clean,” but it’s nice to know that we can sing in peace, even on camera.

Moving on.

One of the more contentious aspects of the Digital Millennium Copyright Act has been its takedown provisions. In essence, the DMCA allows copyright holders to notify content providers when a work infringes on their copyright. Providers must then immediately remove the work. (It’s not as one-sided as it sounds. There are provisions for challenging takedowns and penalties for bad-faith notifications.)

Last week saw a ruling that should cause large copyright holders to take a careful look at their DMCA notification practices. The court ruled that copyright holders must be able to show they’ve considered the possibility that a work might be permissible under the fair use exemption before submitting a notification.

“Fair use” is the concept that excerpts from a copyrighted work may be used for purposes of criticism, education, research, and a few other purposes. It’s what allows televised movie reviews to include clips from the film, Weird Al to parody popular songs, and language textbooks to include illustrative sentences from novels.

Prior to the court’s decision, someone whose work was removed following a notification could make a fair use claim in trying to have the work restored to the site. Now, copyright holders will have to consider whether the use of their material could be fair use before they issue a notification.

It’s not a major change in itself, but the implications are interesting. The definition of fair use has always been intentionally vague–I regard that as a good thing, as it leaves room for new uses without requiring constant updates to the law. To the extent that companies will have to document their decision-making processes, I can see somebody–probably several somebodies–getting rich selling software to help copyright holders make a fair use decision. Of course, such software would need to be updated in light of legal decisions affecting the definition of fair use… Sounds like the annual updates to tax preparation software, doesn’t it?

For anyone in the arts, this is going to be a fascinating area to watch.

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