Turns out it is OK to Sing to Grandma

Or your toddler, or friends at work, or whoever else you may want to serenade with “Happy Birthday.”  Actually, it probably always was, but we will get to that in a moment.

In the federal court decision of Rupa Mara et al v. Warner Chappell Music et al, (http://www.scribd.com/doc/282475897/Rupa-Mara-Et-Al-v-Warner-Chappell-Music-Et-Al), federal district court judge George H. King ruled that the copyright for “Happy Birthday to You” was invalid.  Judge King went as far as to say that none of the various companies that have held the copyright to the song over the past eighty years, and by extension collected the royalties on it, held a valid copyright to it.  This included the most recent company to hold the rights, Warner Chappell.

For many, when (if) they heard news of the case, it was probably somewhat shocking that something like “Happy Birthday” could even have a copyright.  Because it has been around so long and is so frequently sung this seems almost ridiculous.  It seems “a gimme” that this song must be in the public domain.  In fact, this was even brought up in the case, as evidence was brought forward that the song has existed for some 125 years.  Clearly copyright protections can’t run that long, right?

Well, here’s where the legaleez gets a little fuzzy.  First of all, the copyright was first granted in 1935, so even though the song is older, its protection is not.  Furthermore, the judge ruled that the copyrights to the song only belonged to the musical accompaniment of it, and even then only to a specific piano version.  This would seem to set the song free, as most people probably don’t provide a piano accompaniment to the song as they are singing around the kitchen table.

But, and here is where the lawsuit becomes important, family and friend get-togethers are obviously not the only times that people gather round and sing off key to this song.  These other times are when the copyright in enforced – in situations where the song is used in moneymaking ventures.  For example, if the song appears in a movie, the makers of the movie had been obligated to pay a royalty, which is probably why you almost never see the song being sung in movies (think about it).

But it has appeared in some movies.  One example would be the 1994 movie “Hoop Dreams,” in which they had to pay $5,000 to include it for all of nine seconds.  Well, what’s $5,000 for a big Hollywood studio?  Turns out for “Hoop Dreams” that was a pretty significant chunk of its budget, since it was self-funded in part through a grant from the National Endowment for the Arts and only spent $700,000 in the making of the whole movie.

In fact, there were enough of these seemingly minor instances to add up to some serious cash.  Add them all up, and the song brings in about $2 million per year in royalties.  Royalties that will no longer be collected.

So what about the private performance around the dining room table of the song.  Turns out private is the key word.  As long as it isn’t a public performance the copyright laws do not apply.  So, I’m not sure where that leaves the famous singing of Happy Birthday to JFK by Marilyn Monroe, but I may have to watch again strictly for research purposes.

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