Tag Archives: public domain

happy birthday is free after all

According to Robert Brauneis’ new paper, “Copyright and the World’s Most Popular Song”, the song “Happy Birthday To You” — long held as an example by us copyright reformists — is most likely not copyrighted after all, due to the tortuous path of ownership and failure to re-register.[linked from patry copyright blog]

See also the brauneis website for the song’s history.

The author draws four important lessons, summarized here:

  1. [T]he perils of using anecdotes in legal and policy arguments. (p.3) Hoho. Yes.
  2. Noting the utter lack of litigation over this song, despite the weaknesses in the copyright and the money at stake ($2M/year), Brauneis suggests, “[T]he absence of such challenges strongly suggests that there are structural barriers to mounting them, and those structural barriers are worth exploring.”
  3. Noting what was effective abandonment of the copyright of the work for long stretches of time, despite significant uses by others, Brauneis reminds readers that “Were “Happy Birthday to You” a piece of real property, its open, unopposed use over such a period could have resulted in the acquisition of prescriptive rights.” Developing doctrines of adverse possession / prescriptive easements to go along with the propertarian rhetoric of copyright maximalists has been on many people’s proposal lists (even I, as a lowly 1L in properly law, came up with this argument), but this article gives the “dead hands” arguments new teeth by tying the ongoing copyright term extensions to his newly uncovered history: “In light of that increase [in copyright term], it may be necessary to develop some doctrine to avoid the inefficiency and inequity that could result from reassertion of copyright in a work that had been published and used by others without opposition over a long period of time.”
  4. A lesson about the difficulty in tracking copyright, and a reminder that that difficulty will only increase as copyright terms lengthen. Brauneis refers to Copyright Office records, which, reminder to readers, were decimated by the abolition of formal registration requirements in the 1976 Copyright Act. This is also an opportune moment to plug the Orphan Works Act, recently re-introduced in both the House & the Senate. (See beSpacific, 4/27; mebeliWired Campus, 4/25)

Also, just in the matter of women’s musical history, Brauneis does a great job in recovering and fleshing out the story of Mildred Hill and Patty Hill.

Sparky Valentine & IP

John Varley has made more than a few comments about IP and information politics in his various stories. The Golden Globe (recommended) was centrally concerned with an actor named Sparky Valentine, and Sparky had a few observations about IP:

In the early days, when they were considering various ideas for a corporate logo, Valentine had suggested using a character from the old Popeye cartoons. Since they were all in the public domain, Sparky had settled on Wimpy taking a bite out of a hamburger.

followed by:

There was another department whose mission in life was to steal. Steal from dead people, it’s true, but steal nonetheless. Sparky had long ago given up coming up with plots and, except for the occasional inspiration, characters. Anything in the public domain was fair game. Old comic books were a fertile source. Almost anyone who had had his or her own comic book in the twentieth or twenty-first century had made a guest appearance on Sparky by now. Sparky had visited locations from Gotham City to Surf City. Old movie and television serials had been plundered for plotlines and cliffhangers. Sparky had entered alternative universes, places where classic private eyes, singing cowboys, half-breed aliens with pointy ears, and giant radioactive ants actually existed.

And also about librarians:

Hal had a UniKnowledge module, which was the nearest thing we’d ever get to summing up all human information collected since the days of the Cro-Magnon. It held all the libraries of Old Earth. All the movies, television shows, photo files. Billions of billions of bits of data so obscure a researcher might visit some of it once in two or three hundred years, and then only long enough to find it no longer had any reasonable excuse for being. But it wasn’t thrown out. Capacity was virtually infinite, so nothing was ever tossed. Who knew? In ten centuries the twenty years of telemetry from Viking I might be of use to somebody. A vanity-press book, published in 1901, all about corn silage in Minnesota, of which no hard copy existed, might be just the reading you were looking for some dark and stormy night. The UniKnowledge held thousands of books printed in Manx, a language no one had spoken in a hundred years. It held Swahili comic books teaching methods of contraception. It contained cutting-room debris saved from a million motion pictures, discarded first drafts of films never made. A copy of every phone book extant at the time we began to record data by laser, and every one printed since. Fully half of the information in the UK had never been cataloged, and much never referenced in the centuries since its inception, and most of it was likely never to be cataloged. That would be taking the pack-rat impulse too far. Librarians had other things to do, such as develop more powerful search engines to sort through the inchoate mass of data when somebody wanted to find out something truly obscure.

old works, new copyrights

  • Sony is claiming copyright over “Zorro” and has sent a C&D to Sobini Films, which is wanting to produce a movie set in the future (well, 2010 – barely the future any more!) about Zorro. Johnston McCulley first introduced Zorro in 1919 in The Curse of Capistrano. The BBC article states it thusly: “Sobini contends it acquired the rights to Johnston McCulley’s book The Curse of Capistrano…” “Acquired the rights”? It’s a public domain work! BBC
  • OK, this news is from May, but for some reason I just saw it now. A copyright is being claimed on a formerly unknown work by Vivaldi that recently turned up in an archive. Let us remember that Vivaldi died in the 1700s. The opera (“Motezuma”) was found in a German library collection. I can only assume the library is claiming that it was never published and copyright didn’t attach to it?

    Imagine if libraries get to own copyrights on things out of their special collections. The resulting treasure hunt will certainly encourage library administrators to put more money into cataloging the special collections departments. On the other hand, what heirs of famous artists and authors will want to donate works that might yet turn out to be profitable for their great-great-great-great-great-several-times-over-grandchildren?

    I’m inspired to look into the question of copyright of archived unpublished materials. But off the top of my head, I would suggest that a work being made publicly available in a library collection ought to constitute publication. So, whenever the Vivaldi collection was initially made public, copyright on otherwise-unpublished works begins tolling. The libraries that hold works in their collections will profit as museums do now, from controlling access to the original and licensing reproductions.

    Granted, that surely won’t be as satisfying for the holder of the original copy of a composition or literary work, compared with, say, a painting or sketch. In compositions and literary works, the copyrightable expression is all carried by symbolic languages, which are easily replicable. Collectors will still attach value to the original, but the value of the work will flow with the symbolic languages.

    With a painting or sketch, on the other hand, more of the value flows with the original work. The work is not reducable into an easily transcribed symbolic language — it can only be distributed by photographic reproductions of the exact work. And even then, the artist’s expression can only be partially captured by two-dimensional photographic reproductions: The original ink and paper were artistic choices, and brush strokes include three-dimensional information that is not easily captured by photographs.

    So the papers of famous scholars and artists are not going to be quite the boon for libraries that holdings of museums are. That’s the trade-off of being an archive rather than a museum, IMO. An archive gets a lot of stuff that you haven’t yet had time to classify (less often the case than in a museum), but it’s not as often the kind of stuff that might make your institution a fortune.