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“Happy Birthday to You” and the Neverending Term of Copyright

Everyone has been to a birthday party, and everyone has sung “Happy Birthday to You.” Anyone who has recorded their friends and family singing that song and posted the recording on YouTube has committed copyright infringement.  The Warner Music Group claims ownership of the copyright in the musical composition “Happy Birthday to You” and reaps millions of dollars annually through licensing the song for films, television and commercials. Recent scholarship over the origins of the song could cause the composition to enter the public domain.Happy Birthday to You Could Enter Public Domain

‘Happy Birthday to You” demonstrates an enormous problem with current copyright law — the almost indefinite term of copyright protection. Copyright is supposedly a “limited duration monopoly” granted by the government as embodied in the Copyright Act. Copyright owners have the exclusive right to copy, sell, distribute and make derivative works based on their copyrighted creations. I say that copyright is “supposedly” a limited duration monopoly because the current “limited duration” of copyright in the United States runs for the life of the author plus 70 years. To put that in perspective, if Taylor Swift (who is 25) writes a song today and she lives to age 80, that song will be under copyright protection until 2140.

The problem with extended copyright terms is that they deprive the public of the use of the copyrighted work while generating monopoly rents for the copyright holder. The major copyright owners — movie studios, music publishers, record companies, comic book companies and the like — argue that without extended copyright terms, creative artists will have little incentive to make creative works. That argument fails the straight face test: would George Lucas simply given up on Star Wars if he had only been able to protect its copyright for twenty years after he died rather than the 70 years that it is protected now (or the 56 total years of protection that was available in 1977). Would the Beatles have decided to enter the world of finance rather than music if they were worried that none of their hits would be protected by copyright in the United States starting in 2020 (for the copyright term in effect in 1964)?

The answer is clearly no.  The current copyright term — which has been miraculously extended every time that Mickey Mouse (created in 1928) has gotten close to entering the public domain — has not been extended since 1998, when Congress added twenty years to the term. Those twenty years will soon be up, and the major content owners are gearing up to request another extension. The “limited duration” in limited duration monopoly could be rendered completely impotent.

 


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