Who Owns “Happy Birthday” And Why Good Researchers Should Care

Sometimes, I get distracted. 

Even the best plans for the day can get undone when something really interesting comes across the desk. This morning it was an article that I never planned on reading in the first place;  I found it quite by accident – while researching the recently filed “orphaned works” copyright dispute mounted against HathiTrust.  They’re the folks working with a consortium of universities, Google books and others to assemble the world’s largest collection of freely-available digitized scholarly books and articles in the world.

As I often talk about using the HathiTrust Digital Library project  in one of my talks on unusual and frequently overlooked resources for genealogists, I figured I’d better know what’s what since the lawsuit asks for an injunction that would be tantamount to a “stop work” order if successful. 

And since the HathiTrust Library has 9.6 million items digitized, that’s a lotta “stop work.”

Anyway, that’s not today’s story and it’s only slightly related to today’s topic.

Today it’s about kids’ birthday parties. 

And music – specifically a song.  And royalties.  And crime.

And why you (yes, YOU) are very likely a vicious scofflaw, wantonly, criminally stealing someone else’s intellectual property without even the slightest pinprick of conscience, and all in full view of your own little offspring and relatives.

Or maybe not.

You see, it’s pretty widely known all over the tubes of the Internet that the song “Happy Birthday To You” is still under copyright and that the copyright is currently owned by (wait for it) Time-Warner.  In fact, Justice Stephen Breyer even referred to that fact in his 2003 dissent in the Eldred v. Ashcroft case.  That was the case that finally granted 20-year extensions to some copyrights.  

So, if a Supreme Court justice AND the Internet says so, it must be true, right?

After all, if you can find something online and you can also find a “reliable source” – like a Supreme Court guy – to say that the “something” that you found is true, why go any further? Certainly a very large percentage of genealogists would agree that it’s “good enough.”

So, if you sing “Happy Birthday” to your kid, or your grammy or one of your co-workers, you need to send Time-Warner or somebody a check – or else you’re in violation of copyright law and you’d be a common thief. Tsk, tsk…  Remember, ignorance of the law is not an excuse.

Or maybe not. 

Can something written more than a hundred years ago still be under copyright?  Is that even research-able? And if so, surely someone's done that, right?

All of which leads me to this morning’s Article of Distraction: “Copyright and The World’s Most Popular Song” by Robert Brauneis.  Brauneis is a professor at the George Washington University School of Law in Washington, D.C. He is a Harvard J.D. and a former law clerk for (then) First Circuit Court of Appeals Judge Stephen G. Breyer, who is now “Justice” Breyer. At the GWU School of Law, Brauneis is also the co-director of the Intellectual Property Law Program, so when it comes to copyright, he knows whereof he speaks.

Best of all, he writes in readable English and he thinks like a very skilled and very experienced genealogist.  In the article abstract, he specifically mentions “… the dangers of relying on anecdotes without thorough research and analysis.”  Perhaps that may sound familiar? Further, the article abstract ends with this sentence: “Over two hundred unpublished documents found in six archives across the United States have been made available on a website that will serve as an online appendix to this article.”

Archives, “real-deal” unpublished documents, thorough research . . . could it get any better?

Actually, yes.

It’s not very often that you find an article about the law written by a top-notch law professor that references the census, Rootsweb, gravestone research, obituaries, church records, the Filson Historical Society, NARA, oral history and a whole lot more. As Brauneis sketches out the family history of the sisters of Patty Hill, you might almost think you were reading an article in a peer-reviewed, footnote-rich genealogy journal.

As it becomes clear, even songs can have a “genealogy”, just like their copyright owners. And quality research - whether it's a family or a copyright - is based on finding actual documentation, not on accepting what "everyone" already knows to be "true."

Warning: this is not a quick read; the article is 69 pages long.  Still, it raises lots of interesting points, especially about what can happen when “everybody” believes something is true, but nobody actually checks. Here’s the link to the pdf file of the Brauneis article.  The price is right: it’s free.

(which sure beats the song “Happy Birthday To You”...)

As Brauneis points out toward the end of the article,  “Happy Birthday To You” currently generates about $5,000.00 A DAY in royalties for its copyright owners.

Have you paid your fair share?

If not, the copyright owners would politely suggest that you 'fess up and pay up or shut up and stop stealin' their song!