copyright questionDear Doc:

How long does a copyright last?  I seem to remember that it’s 28 years or so, but that it can be renewed, and that’s why they sing cheesy “faux” happy birthday songs in restaurants… because they don’t want to have to pay the two little old ladies who own the rights.  Right???

Wanting to sing the REAL song to my kid.

Dear Wanting:

Like any good urban legend, there is a kernel of truth (or maybe a general) in what you’ve written.  Most of it, however, is wrong.  You see, when copyright laws were first enacted in the early history of our country, copyrights lasted 14 years, and if the author survived those years, he or she could renew the registration for an additional 14 years.  In fact, this “term” was directly inherited from the English law, where, under the Statute of Anne (1710) the term was the same.  The term was lengthened by Congress in 1831 to 28 years, plus a 14 year renewal, and in 1909, the renewal term was doubled to 28 years, giving 56 years of protection to registered works. Then, beginning in the 1970s, Congress started tacking on years, until finally, in 1998, we got the Sonny Bono Copyright Term Extension Act (sometimes called the “Mickey Mouse Protection Act”) that stretched copyright to the life of the author plus another 70 years (and for corporate and anonymous works, a flat 95 years.)  Any work written by an author who died before 1940 may now be in the “public domain”, but then again, if that author worked for a corporation or published the work anonymously, it may still be protected, unless it was published before 1905.

Now for the really bad news: even if you know that the work is still protected by copyright, there is no registration system that is kept up to date, so you may never be able to find the person or company that owns the copyright, even if you wanted to pay for the right to use the work!  These are called “orphan copyrights” and they really make the job of “rights clearance” a nightmare.

Why is the copyright system such a mess, you might ask?  Because simply put, major corporations, like Disney, want to continue to control valuable properties, like Mickey Mouse.  In 1998, when the copyright on Steamboat Willie was about to expire, Disney supported legislation that extended all copyrights to the present terms.  That’s why.

Now, about “Happy Birthday”… the melody for Happy Birthday was written by Mildred J. Hill and Patty Smith Hill. The song was called Good Morning to All and was first published in 1893 in the book Song Stories for the Kindergarten. The melody has since passed into the public domain.  Jessica Hill (another Hill sister) was able secure the copyright to the song with those clever lyrics in 1935. That original copyright should have expired in 1991, but because of all that Congress and Disney has done for copyrights, Happy Birthday is now not due to expire until at least 2030.

Through a chain of corporate purchases, the copyright for Happy Birthday To You is now owned by Time Warner company. Happy Birthday’s copyright is licensed and enforced by ASCAP, and the song brings in more than USD $2 million in annual royalties.  Under the Copyright Statute, you can sing the song at home to your kids, but any public performance must be paid for with a royalty – not to the little old ladies, but to a major media corporation.

So the Doc’s advice?  Stick with the cheesy restaurant happy birthday songs.  You’ll be sticking it to the Man as well.

Any other questions about copyright?  Just ask an attorney at LW&H.  They find this stuff fascinating.

— Lawrence A Husick, Esq.