Weekly Copyright Update

July 31, 2015

New Evidence Could Free Happy Birthday Song into the Public Domain

Controversy surrounding the song, “Happy Birthday to You,” has taken yet another turn with claims this month that new “smoking-gun” evidence has been discovered by attorneys for a New York filmmaker.

In 2013, filmmaker Jennifer Nelson filed a lawsuit after paying $1,500 to use the song in her documentary movie, tentatively titled “Happy Birthday,” asking that the company return any fees it had collected in the previous four years. Nelson’s lawyers now say that the traditional birthday song has been free of copyright protection since 1922, and therefore in the public domain.

According to an article by Daniel Victor published July 28 in the New York Times:

As it stands, it is safe to sing the tune at office gatherings, and lawyers are unlikely to halt children’s birthday parties. But Warner/Chappell, the publishing arm of the Warner Music Group and the holder of the song’s copyright, has been estimated to collect $2 million a year in licensing fees for its use in films, television shows and other productions.

On July 13, defense lawyers produced 500 pages of documents, 200 of which they said were mistakenly omitted earlier in the litigation, according to a court filing. The new documents included a 1927 publication of the song lyrics that included no claim of copyright. Further investigation by Nelson’s lawyers uncovered an edition of the book from 1922, also with no copyright notice.

The court filing argues that copyright law at the time required such a notice and that without it the work was “interjected irrevocably into the public domain.”

If the evidence proves to be viable and the court rules in favor of the plaintiff, then “Happy Birthday to You” would go into the public domain. What would that mean for you? You would be able to record, reproduce or perform the birthday tune without obtaining permission or paying any royalties. And Warner/Chappell would lose millions of dollars in publishing revenue.

Copyright Infringement for Tweets in the News Is the Joke on Comedian Conan O’Brien?

Some TV comedians may be turning to Twitter for fresh material. TV show host Conan O’Brien and his team have been accused of poaching jokes from a San Diego man’s Twitter feed and personal blog.

Comic writer Robert Alexander Kaseberg filed a copyright infringement lawsuit in federal court on July 22, stating that a few jokes he published were picked up by the comedian O’Brien, who told them during his monologue on the Conan television show throughout the year. O’Brien, TBS, “Conan” Executive Producer Jeff Ross and “Conan” Head Writer Mike Sweeney were named in the lawsuit. The jokes were first seen on Kaseberg’s blog and his Twitter account.

“We at Conaco firmly believe there is no merit to this lawsuit,” said Drew Shane, a spokesperson for Conaco, LLC, the production company behind “Conan,” to NBC San Diego in a statement.

Click here to read the four jokes at issue, according to the lawsuit (PDF) filed in US District Court in San Diego.

The suit comes as Twitter has been in the news for honoring Digital Millennium Copyright Act (DMCA) takedown requests from users complaining that their jokes were “lifted wholesale and shared by others, passing them off as their own.”

Kaseberg says he has filed copyright applications for these jokes with the US Copyright Office and the copyrights are pending.

Twitter Is Removing Tweets Over Copyright Issues

Have you written a tweet that you believe has substantive originality and is copyrighted? If so, perhaps you believe someone has stolen your tweet and you want to take down the offender’s tweet. Twitter will remove tweets via their DMCA form if they determine the tweet’s content was stolen.

According to an article in TheSEMPost,

Verge broke a story that a freelance writer was filing multiple DMCAs against a multitude of Twitter handles for tweeting out the same “joke” she had tweeted previously.

Twitter user Olga Lexell filed the DMCAs with Twitter to remove all tweets containing “saw someone spill their high end juice cleanse all over the sidewalk and now I know god is on my side”, which she tweeted on July 9, 2016. According to the Verge, she commented on Twitter:

I simply explained to Twitter that as a freelance writer I make my living writing jokes (and I use some of my tweets to test out jokes in my other writing). I then explained that as such, the jokes are my intellectual property, and that the users in question did not have my permission to repost them without giving me credit.

Twitter has begun to replace certain tweets with copyright notices and a message saying “tweet withheld.” The blocked tweets offer users the chance to “learn more” via a link to Twitter’s policy on DMCA takedown notices.

About Christian Copyright Solutions: CCS’s quest is to help churches and ministries “do music right.” CCS is an expert on church music copyrights and our primary focus is providing licensing and clear educational resources to churches, as well as representation, administration and advocacy for copyright owners. Follow us on Twitter, and Facebook. The information contained herein is for informational purposes only, and is not legal advice or a substitute for legal counsel.