Articles & Links

“All the ‘Happy Birthday’ song copyright claims are invalid”

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In what should be seen as a victory for copyright in America – the Happy Birthday song is now, officially, pending future appeals, in the public domain.

From the LA Times:

None of the companies that have collected royalties on the “Happy Birthday” song for the past 80 years held a valid copyright claim to one of the most popular songs in history, a federal judge in Los Angeles ruled on Tuesday.

In a stunning reversal of decades of copyright claims, the judge ruled that Warner/Chappell never had the right to charge for the use of the “Happy Birthday To You” song. Warner had been enforcing a copyright since 1988, when it bought Birch Tree Group, the successor to Clayton F. Summy Co., which claimed the original disputed copyright.

http://www.latimes.com/local/lanow/la-me-ln-happy-birthday-song-lawsuit-decision-20150922-story.html

This may seem like not a big deal – but the implications are pretty huge. Whether or not anything will come from the upcoming class-action lawsuit to recoup fees that Warner / Chappell has collected for the past god-knows-how-many-years is yet to be seen. I think that it is enough that this overreach of copyright has been stymied, finally. And we can hope that with the threat of class-action suits against future overreach, that claims of copyright will have to be more thoroughly researched by the companies that are asserting these rights. Legal take down scare tactics just lost a bit of their punch.

 

Rights & Reproductions: The Handbook for Cultural Institutions

A great new resource is available to anyone working in arts publishing — Rights & Reproductions: The Handbook for Cultural Institutions. This important new book has been a long time in the making, and the depth and knowledge of the contributors should put it on the top of your reading list if you work in this field. Information about the book below!

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Edited by Anne M. Young

With contributions by Megan P. Bryant, Cherie C. Chen, Kenneth D. Crews, John ffrench, Walter G. Lehmann, Naomi Leibowitz, Melissa Levine, Sofía Galarza Liu, Michelle Gallagher Roberts, Nancy Sims, Deborah Wythe and Anne M. Young

Rights & Reproductions: The Handbook for Cultural Institutions is the first comprehensive resource to focus solely on the rights and reproductions guidelines, established standards and emerging best practices at cultural institutions. With intellectual property laws and rights and reproductions methodologies ever-changing with new technologies, this digital publication, produced using the Online Scholarly Catalogue Initiative (OSCI) Toolkit platform, is a living document that can be updated to remain current with trends and best practices.

Co-Published by the Indianapolis Museum of Art and American Alliance of Museums.

ISBN: 978-1-941963-01-2

Available for purchase here: https://www.aam-us.org/ProductCatalog/Product?ID=5186

$4.99 (nonmembers) and $1.99 (members)

This project is made possible by a grant from the U.S. Institute of Museum and Library Services. The project utilizes the OSCI Toolkit, which is supported by the Getty Foundation as a part of its Online Scholarly Catalogue Initiative.

The Art of Rights & Reproductions: 5 Things You Need to Know

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The business of acquiring images and clearing artist copyrights for arts publications can create a minefield of questions. What is copyright? But I work for a non-profit, surely my use qualifies as fair use? If the artist’s copyright is in the public domain, why do I have to pay a museum for a high-resolution image? How do I find an artist or their estate? 

The discussion could be endless, but below are the FIVE things I wish someone had told me when I started working in Arts Publishing:

1). You are not alone. There are many people out there who are all discussing the same questions you have. Find a list-serve or discussion group. Some of my favorites are:

  • MUSIP– a yahoo group for finding artist representatives and crowdsourcing questions about rights & reproductions.
  • MCN-l– the list-serve for the Museum Computer Network, to discuss information technology issues in the cultural heritage community

Additional useful links to this community can be found in the sidebar ———–>

2). Fair Use is an important component of copyright law, but because there is no hard and fast rule regarding it, deciding to reproduce a copyrighted image under fair use is a difficult decision to make. Luckily, thanks to the hard working folks on the College Art Association’s Task Force on Fair Use, you now have a guide–The Code of Best Practice for Fair Use and the Visual Arts. For more Fair Use FAQ’s see the CAA page on Fair Use or The Stanford Fair Use Project.

3). Taking into account #2, I also urge you to consider your relationships with museums and artists when deciding to use an image or artist copyright under fair use. My relationships with artists, estates, and institutions are my most important assets when it comes to completing a publication on time and on budget. Think long term — will not asking permission harm your relationship with the artist or the museum? Will you need to work with them again in the future?

4). Copyright infringement is a civil, not criminal crime. Unfortunately, to work out whether something is copyright infringement, it can involve a lengthy lawsuit or negotiated settlement. Many times we ask for permission and pay at times exorbitant fees because we don’t want to test the legal waters. In reality, while we can wish it were possible to push back against frivolous and possibly incorrect assertions of copyright ownership, without access to high quality legal representation this may unfortunately not be an option for your organization.

However, you can still negotiate! Don’t hesitate to ask for a discount – or perhaps permission without fees. Non-profits have a good argument for paying less, or nothing at all, and many institutions have discounts for non-profit institutions.

5). Do your research. More and more museums and archives are putting high-resolution images of their holdings online and giving broad permission to use them, either for any use – or at least for educational or academic use. If you don’t do your research, photo agencies will still license you images — say from the Metropolitan Museum of Art. However, if you know those same images qualify for your use under the MET’s Open Access for Scholarly Use guidelines, the same images are free to use. A list of other institutions with policies like this can be found here: http://www.collegeart.org/ip/ip_image

Good luck!

Happy Birthday to the Public Domain

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Smoking gun found in the long saga of the Happy Birthday song?

The story of “Happy Birthday to You” is a fascinating history that spans the annals of Copyright Law. It begins in 1894 when a song with the same melody but different lyrics titled “Good Morning to All” was published by Clayton F. Summy in a collection entitled “Song Stories for the Kindergarten.” That sisters Mildred and Patty Hill were the composer and writer respectively of this version is undisputed, as works created before the 1909 Copyright Act acquired copyright by registration with the Federal Government prior to publication.  The dispute centers on a later publication of the sheet music for “Good Morning to All” with additional lyrics for “Happy Birthday to You” in 1935, with copyright notice “© 1935 Clayton F. Summy Company.”

The issue of copyright to this song hinges on two aspects which the current copyright claimants, Warner/Chappell, assert are true: That the Hill sisters were the authors of the Happy Birthday lyrics, and that the copyright to the 1935 publication was properly obtained. While there is significant evidence that neither of these things are trueif true, and the copyright was properly extended for both its terms, then “Happy Birthday to You” will be under copyright until 2030 — 122 years after the melody was published in 1894. And it will continue to earn approximately $2 million in licensing fees per year.

Somewhat surprisingly, while the copyrightablity of a song as popular as “Happy Birthday to You” has long been an anecdote for the ridiculousness of continuing to retroactively extended copyright terms, no one has stepped up before now, in court, to assert that Warner/Chappell don’t actually own the copyright. This is even more surprising because there is actually a lot of evidence, much of it put together by Robert Brauneis, that the song should have entered the public domain in the first few decades of the 20th century.

The current court case, Good Morning to You Productions v. Warner/Chappell Music, threatens to throw more than a proverbial wrench into this $2 million a year licensing bonanza. In a trove of documents that Warner/Chappell was supposed to have released more than a year ago, the plaintiffs found a 1927 publication of the song “Happy Birthday to You” in “The Everyday Song Book”. The exciting part of this new evidence is that with a little additional searching, the plaintiffs unearthed an earlier edition of this version – a 1922 copy – with the words clearly written below the title, Special permission through courtesy of The Clayton F Summy Co. This version, published without a copyright notice (a requirement of the 1909 Act), AND 13 years prior to the 1935 version that Warner/Chappell claim is the first published version, is THE “smoking gun” which has long been sought by advocates of this song belonging to the public domain. If the judge finds in favor of the plaintiffs, Good Morning to You Productions, that’s “pretty damning conclusive evidence that “Happy Birthday” is in the public domain and the Clayton Summy company knew it. Even worse, this shows that Warner/Chappel has long had in its possession evidence that the song was at least published in 1927 contrary to the company’s own claims in court and elsewhere that the song was first published in 1935.” This would undoubtably open the door for additional lawsuits against Warner/Chappell by anyone who has paid licensing fees for the use of “Happy Birthday to You,” a song that will hopefully soon hold its proper place in the public domain.

Read more at:

From the plaintiffs filing 7/27/2015: www.scribd.com/doc/272751583/Birthday-Evidence
hollywoodreporter.com/thr-esq/happy-birthday-lawsuit-smoking-gun-811144?utm_source=dlvr.it&utm_medium=twitter
blogs.wsj.com/law/2015/07/29/unwrapping-the-happy-birthday-legal-dispute/
www.slate.com/articles/arts/culturebox/2011/07/you_say_its_your_birthday.single.html
www.philly.com/philly/blogs/319489386.html#DhZtLWV2UhXXu43q.99

College Art Association releases Code of Best Practices in Fair Use for the Visual Arts

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If you missed the College Art Association Conference last month in New York City, make sure you don’t miss reading their much anticipated report on Best Practices in Fair Use for the Visual Arts. In development for 5 years, the exhaustive Issues Report is also available – and worth reading in detail if you work in art publishing. It will be interesting to see how the industry begins to implement some of these practices.

For more information on this topic be sure to check out the Center for Media & Social Impact’s Fair Use and the Visual Arts website as well. Great information here!

 

 

IMPORTANT

From the always interesting Joy Garnett at NEWSgrist:

THE CASE FOR APPROPRIATION

a panel moderated by Joy Garnett

with Rob Storr, Virginia Rutledge and Oliver Wasow

Presented by BFA Visual & Critical Studies, SVA, Feb 16, 2012

http://newsgrist.typepad.com/underbelly/2012/02/introduction-to-the-case-for-appropriation.html — an important conversation on appropriation in art. Check back often, as she will post the links to the SVA recorded video, which they will make available soon on their Vimeo and iTunesU sites. 

Righthaven, LLC losing repeatedly in court

Boy, it would be nice to see the notorious copyright troll, Righthaven, LLC, put down for good. For now, I suppose, it is enough that they keep losing in court.

Righthaven’s standing to file copyright suits challenged 

By (contact)
11 August 2011, 1:55 a.m.

Las Vegas copyright lawsuit filer Righthaven LLC has been lying to a federal judge as it tries to avoid the consequences of its lawsuits, defense attorneys charged Wednesday.

For more information about Righthaven, LLC, Wired Magazine has done a number of good articles about them.
http://www.wired.com/threatlevel/tag/righthaven/ 

If you’ve ever received a DMCA takedown notice, or just want information about how to protect yourself, here is a good website with lots more information:
http://righthavenlawsuits.com/