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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.

Jason Cheung

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