Monthly Archive for June, 2013

Free “Happy Birthday to You” From Corporate Copyright

Picture this: You’re watching a movie and it’s the hero’s birthday. His friends throw a surprise party and everyone at the party sings “Happy Birthday to You” when they pop out. The moviemakers must have had a large budget, because it costs $1500 just to use the song “Happy Birthday” in a movie.

Warner Music has held the copyright to the song “Happy Birthday to You” since 1988, after acquiring the song from the previous copyright holder, Birch Tree Group Limited.  Warner Must has collected royalties on the public use of “Happy Birthday” since the day the company received the rights to the song. In 2008 alone, Warner Must made $2 million in licensing fees for “Happy Birthday.”

Happy Birthday to YouWarner Music’s copyright over the song is not expected to end until 2030, but a new case may curtail the copyright sooner than the company thinks it will. On June 13th, a documentary filmmaker named Jennifer Nelson filed suit in federal court in order to recover her licensing fee, as well as the royalties collected from other filmmakers since 2009.

So what does this battle between filmmakers and a multi-million dollar corporation mean for everyone else? If Warner Music is allowed to keep its copyright of the song, the current state of affairs remains the same. Warner Music can collect a licensing fee for public use of the music it owns, although private renditions of the song (i.e. between friends and family) are not subject to such fees. If the film makers win, “Happy Birthday,” and songs with similar history, would be open to public use without any individual ownership over them.

If this copyright debate is distilled down to its most essential elements, it’s a question of individual rights against community use of a property. Warner Music, the individual, has the right to exercise its ownership over its property. This includes the right to not use the property other than to collect money from lending the property off to others; collecting licensing fees is not different from collecting rent. For Warner Music, the lawsuit is not only a tremendous loss of revenue, but also a violation of its right to control property.

On the other hand, the community has the right to use the property that is thought to be owned by everyone. Music in the public domain is like air; it is available to everyone and no one can claim control over it. By holding on to its copyright and not doing anything with the song other than collect money, Warner Music is selfishly inhibiting the use of a popular song used and widely recognized by the community.

How do we resolve this dispute of rights? The easiest solution is to look at the Constitution. The right to hold intellectual property is controlled by Congress, which has been given the authority to “promote the progress of Science and useful arts” by the Constitution. The Copyright Term Extension Act (CTEA), the law which gives copyrights a lifespan after the death of the original authors, has been ruled constitutional by the Supreme Court. Still, it would be absurd for individual cases to obey an ordinary statute but break the Constitutional provision which the statute derives its authority from.

Warner Music’s copyright holding of “Happy Birthday” violates the spirit of the Constitution, even if it meets the statute passed by Congress. The goal of the Constitution is to “promote the progress” of art, including music. Warner Music is purposely hindering the use of music. Charging $1500 (or more!) for the public use of a commonly recognized song has prevented more than one film from being aired, such as the documentary Eyes on the Prize. Warner Music has done nothing with the song to justify this private condemnation of the song.

Indeed, Warner Music’s use of the song vindicates the critics of the Copyright Term Extension Act, since Warner Music uses “Happy Birthday” as a means of collecting millions of dollars even though Warner Music wasn’t the original creator. Warner Music wasn’t even the original publisher, but Warner Music derives substantial benefits from the song as though it were. In short, the CTEA has allowed Warner Music to use the song as a form of corporate welfare. The Constitution gave Congress the power to promote the progress of the arts, not the progress of corporations.

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Neo-Nazi Father Loses Child Visitation Rights

Neo-Nazi’s have the right to free speech, but do they have the right to parenthood? Heath Campbell, a neo-Nazi living New Jersey, recently lost visitation right to his five children. His children, Joycelynn Aryan Nation, Adolf Hitler, Honszlynn Hinler, and Hons Heinrich were in foster care due to allegations of neglect and abuse. The latter three have been adopted. Campbell himself denies the allegations and claims he lost custody of his children because of his beliefs.

Heath Campbell NaziCampbell is a typical neo-Nazi: a Holocaust denier who believes that the name Adolf Hitler is “cute” and that his son, Adolf, is named after a “great war hero.” Campbell is also the founder of Hitler’s Order, a pro-Nazi organization which discusses political and legal issues. Campbell claims he is a good father, despite the fact both his former wives allege he was domestically violent (one of them had a restraining order against him). Campbell was also unemployed and on welfare, although that is due to a lung condition which prevents him from keeping a job. Campbell appeared at his child custody hearing in full Nazi uniform.

Campbell’s story reveals a few basic principles on family law, especially with regards to child custody. First, the needs of the child always come first. The allegations of neglect and abuse are the most important issues here. Campbell’s beliefs should not be considered until Campbell’s ability to keep his children safe and to provide them with food is certain. His lack of income and the claims of domestic violence by his ex-wives are factors a judge would take into serious consideration before visitation rights are granted.

Second, and this is true with law in general, always be presentable to the judge. Campbell’s beliefs are controversial, to say the least, but dressing in full Nazi uniform for a court hearing is not advised. The uniform is a bad idea though, not because it represents Campbell’s neo-Nazi beliefs, but because the uniform is a distraction to the real issues. The state of New Jersey believed that Campbell’s children were being abused and neglected. At best, the neo-Nazism may not hurt Campbell’s chances, but it will not help his case either. The Judiciary would treat neo-Nazism the same way it would treat homosexuality in a case like this: a non-factor.

With that said, Campbell’s case does raise the issue as to whether the parent’s beliefs should be a factor. There is a high probability that Campbell would seek to have his children emulate his beliefs. Campbell’s views on the Holocaust are morally repulsive, but only because society at large has decided so. What about children with radical Muslim parents or parents who prefer creationism over evolution? Proving whether a child has been abused or neglected spiritually, morally, or intellectually is difficult at best. This is not to say that such types of harm can’t exist, but the law can only measure physical harm.

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Religious Employers May Not Be As Safe From Discrimination Laws As They Believe

Employees in religious institutions have often been excluded from labor laws which protect other employees. Their employers enjoy this legal protection because of concerns about the free exercise clause. These exemptions extend to labor discrimination laws, such as the Civil Rights Act. A recently decided case, Dias v. Archdiocese of Cincinnati, may be the first wrecking ball against the wall of protection that religious employers have long enjoyed.

In October of 2010, a Catholic school computer teacher named Christa Dias became pregnant. Dias, a lesbian, became pregnant through artificial insemination. When Dias informed her superiors, they terminated her. The schools Dias worked for, Holy Family and St. Lawrence, are both run by the same archdiocese, a Catholic Church leader. The archdiocese stated Dias was terminated because she had a pregnancy outside of marriage and because the use of artificial insemination to become pregnant both violated church doctrine. Dias’s contract with the schools had conditioned her employment on her compliance with church doctrine. Christa Dias

The jury, however, found in favor of Dias. Dias was awarded $71,000 for back pay and compensatory damages, as well as $100,000 in punitive damages. The judge had ruled that Dias’s homosexuality was irrelevant to the case, so the jury neither considered nor held Dias’s sexual orientation against her. Dias relied on the gender discrimination of the church’s doctrine, pointing out that men who gave semen for artificial insemination were not punished in any way.

The main issue is whether the case is covered by discrimination law. Although most contracts are legally valid, contracts cannot be enforced if the contract breaks a law.  The Civil Rights Act prohibits discrimination on the basis of pregnancy. Firing a woman for becoming pregnant is a violation of the law, regardless of her marital status. The Civil Rights Act, however, also has a built in exception for employees engaged in religious activity. In other words, Dias’s termination would be legal only if she took part in a religious activity as part of her employment, thereby meeting the exception given in the Civil Rights Act.

The exception is only applicable if Dias was involved in a religious activity as part of her employment. As a computer teacher, Dias is not connected to Catholicism, outside of the fact that the schools are Catholic schools. Granted, all teachers hired by the school could be expected to serve as role models to the students. Dias is not required to teach church doctrine to the students though, and being a role model is hardly a religious activity. On the contrary, almost all teachers serve as role models for the students in their charge. Being a role model is part of being a teacher; it is not exclusive to religious teachers, and is thus not a religious activity.

Of course, that is the main theory of the case. A more interesting aspect about the Dias case is what it means for homosexual rights. The judge’s decision to ignore Dias’s sexual orientation is not a surprising move, given that the Civil Rights Act, and similar discrimination laws, are silent when it comes to sexual orientation.

Indeed, the judge’s decision to have Dias’s sexual orientation be a non-issue greatly benefited Dias, since the church had originally planned to use her sexual orientation as proof of her intent to break the contract from the very beginning of her employment.  Homosexuality also contradicts church teachings, so Dias was breaching her contract from the start. The judge’s decision swept this under the rug. Even though this case does not directly address gay rights though, lesbian couples who desire children can expect a limited degree of legal protection.

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