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7 <title>Unhappy Birthday</title>
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14 <p>A birthday that involves copyright infringement is an...</p>
16 <img src="icon.png" alt="logo" align="center"/> <span
17 class="titletext">Unhappy Birthday</span> <img src="icon.png"
18 alt="logo" align="center"/>
25 <p>Did you know <cite>Happy Birthday</cite> is copyrighted and the copyright is
26 currently owned and actively enforced by Time Warner?</p>
28 <p>Did you know that if you sing any copyrighted song:<br />
29 ...at a place open to the public<br />
30 ...or among a substantial number of people who are not family or friends<br />
31 You are involved in a public performance of that work?</p>
33 <p>Did you know an unauthorized public performance is often a form of
34 <em>copyright infringement</em>?</p>
38 <h2>Is <cite>Happy Birthday</cite> Really Copyrighted?</h2>
42 <p>The melody for <cite>Happy Birthday</cite> was first penned by two
43 sisters from Kentucky, Mildred J. Hill and Patty Smith Hill. The song
44 was called <cite>Good Morning to All</cite>, but bore the recognizable
45 melody. The tune was first published in 1893 in the book <cite>Song
46 Stories for the Kindergarten</cite>. The melody has since passed into the
47 public domain, and is safe to hum in public without permission.</p>
49 <p>While it is not entirely clear who first wrote down the words for
50 <cite>Happy Birthday</cite>, it showed up in a few places before Jessica
51 Hill (another Hill sister) was able to demonstrate undeniable
52 similarities between <cite>Good Morning to All</cite> and <cite>Happy
53 Birthday</cite> and to secure the copyright to the song.</p>
55 <p>Working with the Clayton F. Summy Publishing Company, Jessica Hill
56 published and copyrighted <cite>Happy Birthday</cite> in 1935. While the
57 copyright should have expired in 1991, copyright has been extended
58 repeatedly over the last quarter of the twentieth century and the
59 copyright for <cite>Happy Birthday</cite> is now not due to expire until
62 <p>The Clayton F. Summy Company is no longer independent, but, through
63 a chain of purchases, the copyright for <cite>Happy Birthday To You</cite>
64 lies securely in the hands of the Time Warner company. <cite>Happy
65 Birthday's</cite> copyright is licensed and enforced by <a
66 href="http://www.ascap.com/">ASCAP</a>, and the simple little ditty
67 brings in more than USD $2 million in annual royalties.</p>
69 <p>For more information on the history of the tune, lyrics, and
70 copyright status, check out these resources:</p>
74 <li><a href="http://www.snopes.com/music/songs/birthday.htm">Snopes'
75 article on the legal status of <cite>Happy Birthday</cite></a></li>
77 <li><a href="http://www.boycott-riaa.com/article/15999">Great
78 article on <cite>Happy Birthday</cite> and copyright by Kembrew McLeod</a></li>
81 href="http://www.kuro5hin.org/story/2003/7/5/112441/6280">Kuro5hin's
82 article on parts of the history of <cite>Happy Birthday</cite> that you might not
87 <p><strong>Update:</strong> <a
88 href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111624">This
89 article</a> by law professor Robert Brauneis has raised some important
90 questions about the history of Happy Birthday. That said, copyright in
91 the song continues to be enforced and Warner Brothers continues to
92 collect more than $2 million each year in royalties. Until we hear a
93 judge rule on Brauneis's suggestions, we'll continue to give Warner and
94 the market the benefit of the doubt.</p>
97 <h2>Is Singing <cite>Happy Birthday</cite> in Public Really Copyright
102 <p>According to United States copyright law in United States Code, <a
103 href="http://assembler.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000106----000-.html">Title
104 17 §106</a>, authors of works such as musical compositions have the
105 <em>exclusive</em> right "to perform the copyrighted work publicly." In
106 United States Code, <a
107 href="http://assembler.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000101----000-.html">Title
108 17 §101</a>, the law defines publicly performing a work as "to perform
109 or display it at a place open to the public or at any place where a
110 substantial number of persons outside of a normal circle of a family
111 and its social acquaintances is gathered."</p>
113 <p>Additionally, United States Code Title 17, §110(4) states that
114 singing the song among a group of people "without any direct or indirect
115 commercial advantage" will not constitute infringement either. But keep
116 in mind: "indirect commercial advantage" is very broad. Courts have
117 found that restaurants, camps, and other venues benefit indirectly from
118 performances of songs like Happy Birthday. Unless the song has been
119 licensed in these situations, it's infringement.</p>
122 <p>This means that if you sing <cite>Happy Birthday</cite> to your
123 family at home, you're probably not committing copyright infringment.
124 However, if you do it in an restaurant — and if the restaurant
125 hasn't already worked out a deal with ASCAP — you may be engaging
126 in <em>copyright infringement</em>.</p>
128 <h2>How Can I Help Stop Infringement?</h2>
130 <p>The best way to stop infringement is to tell the authorities and
131 the owners so that they can follow up and arrange for a license and
132 for royalties to be paid. Licenses for <cite>Happy Birthday</cite> are
133 controlled by ASCAP. While monetary royalties will be negligible for a
134 single restaurant performance, it is the principle that is at
137 <p>If you have seen someone singing <cite>Happy Birthday</cite> in a restaurant,
138 a park, or at a school, you should tell ASCAP so that they can arrange
139 for a license. If you are an offender, you should apologize and offer
140 to pay whatever is due — a nickel, a quarter, a dollar —
141 whatever ASCAP demands.</p>
143 <p>There is an overwhelming amount of copyright infringement of <cite>Happy
144 Birthday</cite>. Let's right the balance and tell ASCAP about
145 every one of these violations!</p>
147 <p>There are many ways to get in contact with ASCAP:</p>
150 <p><strong>Email</strong><br />
151 <a href="mailto:licensing@ascap.com">licensing@ascap.com</a></p>
154 <p><strong>Mailing Address</strong><br />
155 ASCAP - New York<br />
156 One Lincoln Plaza<br />
157 New York, NY 10023</p>
159 <p><strong>Phone</strong><br/>
163 <p>It would also be a good idea to keep the song's owner —
164 Time Warner — in the loop. Here is their contact
169 <p><strong>Mailing Address</strong><br/>
170 Time Warner Inc.<br/>
171 One Time Warner Center<br/>
172 New York, NY 10019-8016<br/></p>
174 <p><strong>Phone</strong><br/>
179 <p>If you're going to send a message, here's a sample letter. (Before
180 sending such a letter, you should know that some restaurants,
181 nightclubs, etc., pay for blanket ASCAP catalogue licenses that might
182 exempt patrons from copyright liability for singing during dinner.)
183 You'll want to modify yours to include correct details on the
189 The copyright status of "Happy Birthday To You" and the law
190 related to public performances of copyrighted works have recently been
191 brought to my attention. I am very concerned by the public's apparent
192 disregard for copyright law demonstrated by rampant infringement of
193 "Happy Birthday To You."
195 It is with this in mind that I wish to bring to your attention a
196 recent unauthorized public performance:
198 -->> WHEN (e.g., December 10, 2004)
199 -->> WHERE (e.g., at the Vol De Nuit at 148 West 4th Street in New York)
200 -->> WHO (e.g., a group of patrons and the barstaff)
202 I hope that you are able to quickly follow up on this and to enforce
203 your copyright and extract the necessary royalties or licenses from
206 It is, in part, because of your lax and selective enforcement of your
207 copyright that most people do not realize that "Happy Birthday To You"
208 is even copyrighted at all.
210 In the event that you choose to continue selectively enforcing the
211 copyright in "Happy Birthday To You," for whatever reason, please
212 consider asking Congress to change copyright law to reflect the way that
213 most people view and interact with copyrighted works such as "Happy
218 -->> YOUR ADDRESS
225 <p><strong>Unhappy Birthday</strong> is a grassroots project run by
226 citizens who are outraged by rampant copyright infringement in today's
227 society — particularly in relation to the song <cite>Happy
230 <p>You can support us by buying overpriced items in the <a
231 href="http://www.cafepress.com/unhappybirthday">official Unhappy
232 Birthday store</a>.</p>
234 <p>Our president is Raymond Ty. You can get in contact with our
235 leadership by emailing our copyrighteous spokesman — Benjamin Mako
236 Hill — at <a href="mailto:mako@atdot.cc">mako@atdot.cc</a> </p>
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