Clappy Birthday

Unwonk - Episode 14: Clappy Birthday

On this episode, we talk to leading intellectual property attorney Sam Fifer of global law firm Dentons about how "Happy Birthday to You" unceremoniously fell from copyright grace and assemble a superawesome panel on how badly restaurants have haunted us with their cringey versions of happy birthday songs.

Listen with the player below, subscribe in iTunes or Stitcher (links above), or with your favorite podcast app.

Today's Guest

Many thanks to our interview guest, Sam Fifer, chair of the Intellectual Property and Technology practice group at global law firm Dentons, and Adjunct Professor at Northwestern University School of Law. We look forward to singing The Song of the Volga Boatmen on his birthday. 

Today's Panel

Oh, boy. Thanks to our panel today, who bravely listened to full versions of restaurant happy birthday songs:

And here are the links we sent to the panel about restaurant birthday song categories:

Just a bonus from Farrell's Ice Cream Parlor (WHICH IS A FANTASTICAL WONDERFUL PLACE): https://www.youtube.com/watch?v=ZftE947AlmA

[Episode keywords: copyright, incessant clapping, shouting at people on their birthday; what happens at Hooters goes right to Youtube; Song of the Volga Boatmen]


Episode Transcript

UNWONK PODCAST - EPISODE 14: CLAPPY BIRTHDAY

Hi, friend. This is a rough transcript of this episode of Unwonk. What's that mean? It means that we're just pasting the original script for the show plus unvetted transcripts of any interviews. So, you're likely to see content that maybe didn't make the final cut, maybe not see some content that was in the episode but not the original script, and run across a few typos. 

As with everything on Unwonk, the transcript below is for general informational purposes only - this is not legal advice - if you need to have a legal question answered, please seek legit legal representation. 

On this episode of Unwonk, we learn

  • How the song happy birthday to you lost its copyright in a very public way,
  • We talk to copyright and technology attorney Sam Fifer,
  • And we have a panel that expose the  secret that bar mitvahs are regularly held in hooters

This is Unwonk. We respond to your legal questions with relevant and useful information. If you would like to submit a question, please visit our site at Unwonk.com.

When you’re there, you can also find where to follow us on twitter, facebook, and all the social things. And make sure to tell your friends about us. Because we want to make your friends our friends. Wait, was too forward?

You can also check out our ask a lawyer column in deadspin by clicking on the banner at our site or going to Unwonk.com/deadspin.

Even though the  general information on this podcast is provided by actual attorneys, you’d be an idiot to think it is actual legal advice, and you’d also be the type of person who taps a beer can after it’s been shaken - you know your just creating more bubbles, right?

And now, today’s question.

I read that the song Happy Birthday was no longer subject to copyright as of a few weeks ago. Isn’t it from the 1900’s? How was it still subject to copyright? We were supposed to be paying royalties whenever we sang it? I love this song and it’s turned my world upside down that this song didn’t belong to the public till last week. Hope, Florida

Out of fairness to you, the listener, I’m going to front the episode - which is entirely dedicated to this question - by stating this: I hate the song Happy Birthday to You. Absolutely. I pretty much feel that music can’t get worse than that song (with the exceptions, of course, of (i) Who Let the Dogs Out by the Baja Boys, and (ii) any song that farts out of Elton’s John’s face but not including Tiny Dancer - that’s a really good one.. 

And it’s been around for almost 125 years. It reminds me of a scene in the 1999 movie Go where the character todd is reading a newspaper comics section, noting the enduring everpresence of the “Family Circus” comic.  “And it's always there,” he says “in the lower right hand corner, just waiting to suck.” To me, Happy Birthday to You is the Family Circus of songs. Just constantly existing and pulling the joy from the words before they leave anyone’s mouths.

This is also the point where I would normally launch into a barely related and self-indulgent digression about a dark memory from my childhood or other time in my life for the enjoyment of my audience. But I already talked about my worst birthday ever in Episode 8, so you can check that out at your leisure. 

The quick answer, Hope, yes: it did have a copyright until a few weeks ago. We’ll dive into the legal details in a second, and then later we have a great panel discussion with some great people. And I want to make a correction upfront - one of the panelists Felix Salmon, has an awesome podcast called Slate Money, and, I state in the panel that the artwork for his podcast is purple. Felix is correct in that the color is actually green. I regret the error.

Now, let’s get past the short one word answer on the legal side. And I have just the person to talk about it. Joining us from Chicago, we have Sam Fifer - Partner and Co-Chair of the Intellectual Property and Technology Practice Group at the global Law Firm Dentons and Adjunct Professor at the Northwestern University School of Law. Sam, thanks for talking with us today.

Sam:        My pleasure.

Unwonk:        Sam could you give us a brief glimpse of what this court decision was and what it practically means to everyone in the United States.

Sam:        Well I could start at the end of that.  It doesn’t really mean much to most people.  But to copyright phrases such as myself it’s kind of a momentous decision.  And the way it came about somebody had been… people who are making that documentary about the song “Happy Birthday to You” found themselves in the situation where they thought they actually have to use the words and the music of the song as part of their documentary.  And historically the people who own the copyright of the song or you know, [inaudible] the ending thought they did Warner Chappell Music said no you can’t use it unless you, you know, pay us the licensed fee, significant licensed fee.  So the documentary film makers in high dudgeons said we’re not gonna take this anymore.  And file the declaratory judgment action and a judge in the central district of California Los Angeles kind of heart of the entertainment industry ruled on September 22nd that the defendants in this declaratory judgment action Warner Chappell Music did not own the copyright to the lyrics of the song “Happy Birthday to You” game over.  I mean that’s really the… you know, the beginning and the ending of it.  So I said somewhat at the beginning of your question or being my answer to your question you know, it really doesn’t mean much.  The reason it really doesn’t mean all that much to most people was that everybody sings the song and they don’t care and nobody has cared that you know, to extract a license fee.  But every now and then you know, people have had to engage and elaborate work around so things like movies, television programs, stage plays and instead of doing things like singing “Happy Birthday” to celebrate someone’s birthday is a character in the film, they’ve had to sing something else.  You know, for like “For He’s a Jolly Good Fellow” I think was one popular work around.  And I remember this is not completely off topic but I remember back in college when we sang “Happy Birthday” to someone we used the tune of the “Volga Boatmen”.  We sang the lyrics that we’ve used different music.

Unwonk:        Is that because you’re afraid you’ll gonna get royalty invoice from…?

Sam:        No I think it was probably… I think it was probably because we have a little too much to drink.  But I promise I won’t sing it for you.

Unwonk:        Well actually part of the question we receive the person is asking we’re we supposed to be paying royalties whenever we sing the song.  And there’s a difference right between if you’re at a restaurant and if the wait staff comes and sings it in a coordinated you know, probably some with dispiriting demoralizing version of Happy Birthday or if a group of private people at a table dining break out singing it to those people need to technically would they have to pay royalties what is that distinction of performance?

Sam:        No.  And that’s a various good question.  The guests you know, just sort of ordinary citizens no one is really ever you know, no one had really even been in a position to literally pay that license fee even if someone stood in front of them and stuck their hand out and said you know, please pay us, the wait staff at the restaurant different story.  You know, just because you know, when you run a commercial business you know, you can’t necessarily do things that you could do in your own home.  You know, so there’s like a home exception of the copyright law for you know, displaying television programs to your guests you know, playing music, you know having a party where you can dance and listen to the music versus you know, selling services and products for a fee and in effect enticing them to come in and you know, do business with you because of your impeccable choices and selecting music.  You know, that’s why when you go to a fancy restaurants courses may change now you know, the waiters do things like you know, sing Happy Birthday maybe not to the tune of the “Volga Boatmen but you know, some other work around and that may stop.  Now I must say as a lawyer [inaudible] you shouldn’t listen to this program for legal advice just for you know, legal theory and so forth.  There’s a chance this case could get appeal…

Unwonk:         Do you think at some point Justice Kennedy will be the swing vote on “Happy Birthday to You”?

Sam:        Yeah by swing do you mean as a style of music or?

Unwonk:        Whatever it takes to avoid paying royalties Sam.

Sam:        Yeah you know, I wouldn’t bet against it but I’d say it’s a long shot.  

Unwonk:        Another part of the question was the person was shocked you know, isn’t this song from a 1900’s and frankly the roots of this song was back in 1893 so the song is older than the San Francisco earthquake of 1906.

Sam:        Yeah.

Unwonk:        So this song was a long, long time ago.  When copyright came about and you know it came from… authority came from constitution how long did copyrights originally last and what happened to make them kind of go as long as they’re going now?

Sam:        Yeah well I think the first statue was in active in 1790 gave the owner of a copyright two consecutive terms of 14 years each.  Now that balloon in later years and so the 1909 act under which this particular case was decided had two terms of 28 years,  twenty-eight and twenty-eight a  total of 56 with subsequent amendments to copyright law, it has gone way, way up.  And you know, in order to really have you know, good clear answer of the question you know, how long is the term of copyright right now you almost have to look at a chart but essentially you know something like the lyrics to Happy Birthday.  If they had actually been created in the first published as claimed in 1935 you could and have been renewed somewhere along the line you could theoretically have the term of copyrights for that song that would [inaudible] year 2030 you know like 95 years.  To answer your question you know, how did… how did this keep growing.  So there is two things, number one human life spans are longer now than they were 1790.  I would call that a [inaudible] reason.  But the primary reason is I think that the interest of people who own copyrights haven’t a lot of money exploiting them where such that they believe that advisable to ask Congress to increase the terms.  Now I understand that the constitution just says that authors have the right or should have the right to be able to exploit their writings and copyrightable subject matter for limited terms.  All it just means is there has to be an end.  There’s nothing in the constitution that has to be a reasonable or you know or limited term that’s less than a human life span.

Unwonk:        My final question Sam and everyone have a different take on this what are your personal thoughts about the song “Happy Birthday to You”?

Sam:        Now I think it’s a great song.  I think its… you know we can come out of the storm cellar of you know, illegal conduct now in bask of the sunshine that you know, we’re no longer law breakers when we sing Happy Birthday to our friends.  So I think it’s a modest improvement of our way of life but very modest.

Unwonk:        Sam thank you very much, I appreciate your time.

Sam:        My pleasure.

 

Well that pretty much sums it up on the legal side. 

There’s still some cultural fallout to deal with, though. And for that, we have today’s panel discussion. And, here it is.

[PANEL TRANSCRIPT TO COME]

I hope this answers your question, hope. Happy Birthday To You now belongs to the people. Which for someone like you who loves the song is the perfect result. For someone like me, this belongs to the people in the same way as communicable diseases, that half eaten jar of spoiled mayonnaise in the fridge you never get around to tossing, or Taco Bell - it’s always going to just loom and never go away. Guess I should be thankful that Elton John’s music is subject to copyright.

Thanks for listening to this episode of Unwonk.

And thank you again to our guest Sam Fifer of Dentons.

And our panel, Nora Zuckerman, Lilla Zuckerman, Garret Kamps, and Felix Salmon

Please visit our site at Unwonk.com to ask your questions, and for lots of bonus material about the topics on today’s episode. You can also find us on twitter, and facebook, and you can also - well, this is mandatory - tell everyone you know to listen and subscribe.

And don’t forget check out our deadspin column, updating every couple-ish weeks. 

On the next episode, we learn:

  • The legal limit on candles on a birthday cake in Nebraska,
  • Why kellogg’s uses an ampersand instead of the word and in “snap, crackle & pop”, and
  • Why having a us senate candidate who just admitted to sacrificing a goat and drinking its blood is probably not the worst thing to admit to. Just imagine the stuff he isn’t disclosing.