Photo courtesy of Wikimedia Commons.
Is there any song in the world more familiar than “Happy Birthday to You”? “Row, Row, Row Your Boat” perhaps, though the 1988 Guinness Book of World Records would have us believe that the birthday jingle is the most recognizable song in the English speaking world.
As every restaurant chain owner or executive is well aware, having an entire waitstaff sing “The Itsby Bitsy Spider”, “Ring Around the Rosie”, or even the Beatles’ “Birthday” for their guests likely won’t land anyone in a heap of litigation. “Happy Birthday” is, of course, a different story.
Its melody and structure, as penned by Patty and Mildred J. Hill in 1893, are prime intellectual real estate for the Warner/Chappell Music publishing company and its parent, Warner Music Group, who have collected roughly $2 million in royalties annually since acquiring the song’s rights in 1988.
That number would probably be higher had they pursued their intended lawsuit against the Girl Scouts for singing the tune around campfires, but that would have made for bad publicity.
If you’re unfamiliar with the business and legality of music publishing, it’s the reason why Michael Jackson and Paul McCartney feuded for more than two decades. What publishing means exactly is best explained in the two different ways a piece of music can be owned.
The first is by the songwriter as the individual who brought about the work’s intellectual existence. This awards them the basic freedom to perform and alter their song themselves as they see fit. The second is music publishing, which determines the commercial use of a song — its placement in advertising, allowing for it to be performed or recorded by others, and deciding who reaps the principle benefits of these transactions.
Why does it matter? Following the death of the John Lennon, Michael Jackson voraciously acquired publishing rights to a great portion of the Beatles’ catalog, much to the anger of McCartney (but to the delight of Nike). Today, McCartney is free to play whatever song he co-wrote with Lennon as often as he likes, but if those songs are featured on a DVD or other recording that makes money, a portion of the sales go back to the Jackson estate.
And when Phillips wants to hire hacks who sound like a happier version of Pearl Jam to cover “Getting Better” for a lightbulb commercial, Macca has no say in the matter.
Between billionaire pop stars, this amounts to mere egotistical one-upmanship that makes any prior artistic collaborations between them look a little odd years later. For penny pinching chain restaurants, it means having to devise their own original birthday jingles to sing to guests who wish to be celebrated… or horribly embarrassed.
Yet that may no longer be the case following a lawsuit between Warner/Chappell and Jennifer Nelson, a documentarian based in New York currently producing a film about the song.
Nelson’s own production company, Good Morning to You Productions, insists that their documentary shows the song outlived its copyright protections in 1921. Until this case, Warner/Chappell’s publishing ownership of “Happy Birthday to You” was understood by copyright law to be concrete until 2016 in Europe and 2030 in the US. Good Morning to You further charges that whatever rights that Warner/Chappell may have might only consist of piano arrangements for the song. Its melody and lyrics, they insist, exist as independent works.
The lawsuit says just about everything anyone needs to know about the frivolous and outdated foundation of current copyright protections and the great realm of contractual douche-baggery that is music publishing. Even the stalwart defenders of intellectual property in the dormant debate over file sharing tend not to align themselves with the Michael Jackson and Warner/Chappell method of business.
After all, theirs is not that far departed from Metallica’s strategy in addressing Napster or how major labels dragged download-happy college kids from their dorms to the courts ten years ago. However, Good Morning to You isn’t so much challenging the system at large as it is trying to beat Warner/Chappell at its own game — the most infamous copyright hawks in history taken to task by a crack research team of documentarians who simply did their homework a little bit more thoroughly.
In the process, onlookers can marvel at how much of a charade the whole system is for themselves, especially in the age of memes and viral videos where in the foreground, content creators (read: artists) are more frequently finding themselves on the short end of the income stick.
In fact, recorded music might be among the most distinctly devalued asset in media since the dawn of the internet — and by proxy, its content creators (read: songwriters) the most devalued profession. Meanwhile in Hollywood, you don’t see film studios huffing over memes using screenshots from their movies, even though their revenues are as much at risk by the practice. Which is to say, not at all.
To a few activists in the area of copyright reform, there is a path of moderation; a potential middle ground where content creators can be properly compensated while no one need worry about being sued for using the Star Wars theme in a YouTube parody video. A way to address questions over file sharing, viral culture, and “Happy Birthday to You”.
Sheet music for Petty and Mildred J. Hill’s “Good-Morning To All” composition, the basis of “Happy Birthday to You” as we know it today. Photo courtesy of Wikimedia Commons.
“Anybody who is not being paid by a lobbyist understands we need two kinds of changes,” says Lawrence Lessig, author and political activist. “One is change that assures that copyright law leaves free the kind of activity that culture needs, and the other is a copyright law that secures compensation to the artists who need compensation to create good work.”
He explains how the two aren’t necessarily mutually exclusive, but progress can put these objectives at odds. The dawn of the Digital Age has obviously made it easier than ever for anyone to replicate almost any form of media, leaving only those with means (i.e. record labels, publishing companies, Metallica, etc.) with the ability to “defend” their work, as the aging refrain goes.
Of course, the implications of such changes don’t just affect music and movies, but information on the whole. As Dr. Rufus Pollock of the Open Knowledge Foundation explains to BTR that a major force in bringing about copyright reform is the increasing compatibility of softwares and the endless possibility for innovation therein.
Currently, licensing and other intellectual property restraints hinder technologists from combining large and small data sets in such a way to make digital life more seamless, as well as larger, more complex softwares with simpler ones.
In the same way platforms like Spotify, Last.fm, and even iTunes have taken liberty with copyright in order to bring consumers what they want (i.e. a subscription-less, on-demand music streaming service paid for in advertising) only to win their lawsuits later, Google and other purveyors of big data are skirting rules of software licensing, not to mention privacy, in the name of convenience.
To Pollock and other proponents of this ‘open culture’ mentality, the results speak for themselves.
“This vision that we’ve seen the free and open software industry that’s built incredible technologies that rival that from the closed source end – Firefox, Android, Linux, and so on,” says Pollock. “Those have been built and they’ve only worked because the different components have been recognized for how well they are put together.”
In regards to the music industry, Pollock says content like music works in the same way. “We’ve seen [the issue arise] in remixes and we’ve seen it in other things,” says Pollock, trying to address the challenge of how do we combine material. “And if it’s not open, [we’ve seen] how challenging that can be.”
Largely, all these interactions – between song and platform, data sets and softwares — are still pursued but with the anxieties of marijuana peddling: It’s still illegal, despite the increasingly decriminalized marketplace at the hands of a cultural sea change.
The path leading to where the ends of compensation and free exchange meet, in both Lessig’s and Pollock’s eyes, is convoluted by industry interests bolstered by a biased system. Lessig imagines a new framework, one that’s more “conceptually complex” to implement but simplified in practical application.
Like many reforms Lessig is passionate about, such as fighting the corrosive influence of money in American politics, the public will need to be informed and activated in order to bring about any reasonable solution.
“We’ve got to find a way to get enough people engaged in this, take responsibility for spreading the message,” says Lessig. “When there’s enough people who have aligned themselves and are willing in some sense to act, that will be the moment we’ll be able to achieve something practically.”
Perhaps then and only then can everyday Americans enjoy the right to hear a crowd of overworked food service employees wish them a happy birthday through the power of traditional song, the way God intended it.