Earlier this week, some filmmakers filed a class action suit that attempts to establish as fact that the song “Happy Birthday to You” is in the public domain – and has been for many years. The suit is a class action on behalf of everyone who has paid licensing fees to use the song in media and public performances, which alleges that the licensing requests are wrongful, and seeks -repayment to all class members- of unlawful fees they have been forced to pay.
birthday singing CC BY Joel Kramer
It’s interesting to note that a -lot- of copyright nerds have been of the opinion that the song probably was public domain – it’s well-known that the first version of the melody was published so long ago it should be public domain. But there’s always been a lot of murkiness about which version was published first, by whom, and who owned the copyrights in the published versions, and so on – and Warner/Chappell Music has stood happily in the midst of that murk, collecting licensing fees. (Or, where users decide licensing fees are too costly, subjecting us all (and especially the poor, unfortunate waitstaff) to the hideous alternative compositions that count as “birthday songs” at most major chain sit-down restaurants.)
So, if people suspected this song was public domain, why hasn’t anyone tried to legally establish that before? Well, aside from a few broad classes of works, it’s actually often tremendously difficult to conclusively know that a work is in the public domain. Copyright scholar Peter Hirtle maintains an ever-growing chart of the mind-numbingly complex maze of considerations in establishing public domain status under U.S. law. The chart itself currently has 21 footnotes.
When libraries, archives, and other folks seek to digitize and publicly share items in our collections, it costs us a lot of money: the digitization itself isn’t cheap, and then we have storage, preservation, and delivery (bandwidth) costs. So it’s hard to dedicate resources to digitizing something where we might get into a fight with a purported copyright owner and end up having to take it back down. Although many of us are getting better at embracing copyright risks, especially for materials of high importance and interest, we are all still operating under really limited budgets, so a lot of digitization by cultural organizations still focuses on public domain materials.
Happy Birthday To You CC BY-NC-SA Sarah Johnson
But as this suit demonstrates, figuring out if something is in the public domain also takes resources – and unfortunately, how many resources it will take, for any given item, can be impossible to predict. Say you find the original copyright registration from 1936 – if you don’t find a renewal notice, have you proven that it wasn’t renewed? And if your research has to encompass author death dates, inheritance law or corporate histories, there are many non-copyright rabbit holes you might fall down. Many cultural organizations (and others) knowing all these uncertainties, decide not to commit to what might become a massive black hole draining resources that could be used elsewhere.
So these plaintiffs may have been the only people who -could- have brought this suit. They’re suing because they’ve had to pay a license fee to use the song in a documentary – which is about the song. I’m guessing the research for the documentary had gotten them at least partially through the murkiness that is the history of this song’s publication – because their legal filings are kind of amazing.
Their brief in this case highlights how much intensive, detailed research this kind of public domain determination can require – pages 3-16 are entirely made up of factual statements about dates of publication, copyright registrations and transfers, and company incorporations and disbandings – covering a period from 1893 to 1998. This is not a casual investment of a few hours of research – this is a dissertation.
And because there is another party actively claiming to own the copyrights, the plaintiff’s can’t have any holes in their documentation – they have to convince a court that their factual record is airtight. If they can establish that, though, they’re doing a terrific public service – even if they don’t get repayments to all the class members, they’ll have cleared up the historical murk so that the public – who should have been able to do so all along – will be able to freely use this song we (almost certainly) all own.
Libby with birthday candles CC BY Andrew Eick