Friday, February 12, 2016

An Unhappy Birthday To You

The argument that arose this month over the diaries of Anne Frank shows how rights are such an important aspect of life in the 21st century. 
The specific issue around the Diary of Anne Frank case concerns the term of the rights. Under EU laws this currently stands at 70 years from publication, but the Foundation representing the estate of the Franks family claim that the copyright for the book is based on the publication of derivative works, or versions of the original diaries which were used to create new works.
As more and more of the woks created by the rise of popular media start to age towards the end of their copyright term, there have been other famous cases recently which have also been publicised.
Perhaps the most famous is over the most valuable song ever written, Happy Birthday.
It's worth covering this seminal rights situation in detail. Here's what Wikipedia has to say (in edited form):
Patty Hill was a kindergarten principal in Kentucky developing various teaching methods, her sister Mildred was a pianist and composer. The sisters used "Good Morning to All" as a song that young children would find easy to sing, which is claimed as the basis for "Happy Birthday". 
The combination of melody and lyrics in "Happy Birthday to You" first appeared in print in 1912, and probably existed even earlier.
None of the early appearances of the "Happy Birthday to You" lyrics included credits or copyright notices. The Summy Company registered a copyright in 1935, crediting authors Preston Ware Orem and Mrs. R. R. Forman. In 1988, Warner/Chappell Music purchased the company owning the copyright for US$25 million, with the value of "Happy Birthday" estimated at US$5 million. 
Based on the 1935 copyright registration, Warner claimed that the United States copyright will not expire until 2030, and that unauthorized public performances of the song are technically illegal unless royalties are paid to Warner. In one specific instance in February 2010, these royalties were said to amount to US$700. By one estimate, the song is the highest-earning single song in history, with estimated earnings since its creation of US$50 million. In the EU the copyright of the song was set to expire no later than December 31, 2016.
The American copyright status of "Happy Birthday to You" began to draw more attention with the passage of the Sonny Bono Copyright Extension Act in 1998. When the US Supreme Court upheld the Act in  Eldred v Ashcroft in 2003, "Happy Birthday to You" was mentioned in dissenting opinion. American law professor Robert Brauneis, who extensively researched the song, concluded in 2010 that "It is almost certainly no longer under copyright. In 2013, based in large part on Brauneis's research, Good Morning to You Productions, a company producing a documentary about "Good Morning to All", sued Warner/Chappell for claiming false copyright to the song. In September 2015, a federal judge declared that the Warner/Chappell copyright claim was invalid, ruling that the copyright registration applied only to a specific piano arrangement of the song, and not to its lyrics and melody.
But media companies do not lack the clout to fight their corner as the Sonny Bono Copyright Extension Act (also called the Mickey Mouse Copyright Act by dissenter since Disney famously managed to back this change in US law to keep Mickey Mouse under copyright. Indeed, the changes in the US now mean that this will be a non issue for the foreseeable future.
The problem now is that there is a huge disparity between the non-policed and non-legislated rights regimes in countries like China and, to a lesser extent, Russia, the rules and laws operating in the EU and those enforceable in the US.
Tracking and managing rights has never been more difficult, but this is our mission at Rights Tracker. However complex the situation we help our clients, from TV companies through ad agencies and multinational pharma companies, to code, track, protect and exploit their rights. It's interesting, fascinating and a great challenge, and if you'd like to understand more, get in touch with us.