This is great, thank you! When forwarding, note the typo: the first "1983" should be "1893".
-Karl <[email protected]> writes: >One of the English language's most recognized and performed songs is >_[Happy Birthday to You][1]_ (_HBTY_), which likely first appeared >between 1893 and 1912 as new age-grading standards in American schools >increased the need for a common celebratory song. Historian Elizabeth >Pleck's work shows birthday parties as a common practice had only come >into vogue around the 1830s, while confection-lovers would wait another >20 years before the modern birthday cake emerged in the 1850s. _HBTY _is >a [derivative work][2] combing generally-assumed-to-be-folk lyrics with >the tune of _[Good Morning to All][3]_ (_GMTA_) a melody [written by and >copyright to][4] [Mildred J. Hill][5] in 1983. The original _GMTA >_lyrics were penned by her sister, [Patty Smith Hill][6]. > >[![][7]][8] > >Good Morning to All sheet music > >Today, after a series of mergers and acquisitions the [Warner Music >Group][9] claims copyright on _HBTY_, and current law states it will >remain rightful owner in the U.S. Until 2030. This assertion is >contested in detail by Professor Robert Brauneis in his paper_[ >Copyright and the World's Most Popular Song][10]_. In spite of [common >belief ][11]that it remains under copyright, Braunies' archival research >indicates that _HBTY_ may actual be a public domain work. By recapping >his arguments (after the jump), I hope to help other artists understand >the importance of documentation and proper registration of works should >they seek to obtain copyright protection - as well as to consider >problems that can arise from the continued extension of copyright term >limits and in turn, the estate-based control of past works. Lastly, I'd >like readers to become more aware of the general contributions made by >Patty and Mildred Hill to the respective fields of education and >musicology. > >For the purpose of clarity we first require a set of definitions and to >understand there are 3 layers of copyright in this case. (1) The melody >in _GMTA _is one work, subject to it's own copyright; (2) the words >“Happy birthday to you, happy birthday to you, happy birthday dear >(celebrant name), happy birthday to you” is another work who's author is >unknown despite the existence of two seemingly obvious candidates. >Brauneis refers to the combination of these works as (3) _GMTA/HBTY_, >which as a derivative work, is subject to its own copyright. To >understand why Warner Music Group's claim on _Happy Birthday to You _may >be invalid, we have to trace back the history of the _GMTA/HBTY_ >combination; it's where the $ is. > >In 1893 Mildred and Patty began work on _[Song Stories for the >Kindergarten][12]_, a songbook which providing children with expressive, >emotional music of quality. The Hills adapted Mildred's original >melodies (such as _GMTA_) to fit the limited singing range of young >children. Her drafts, equipped with easy and repetitive intervals, were >brought into the classroom, tested, and then later modified as needed so >that even the youngest kids could participate. Over the next years >Mildred would focus on the study of African-American hymnals and >spirituals while Patty advanced her studies in early childhood >education. > >[![Beginners' Book of Songs (Cable Co. of Chicago)][13]][14] > >Beginners' Book of Songs > >Around or prior to 1912, birthday parties had come fully into vogue with >the masses. Assisting in the celebrations, companies like Cable Company >(Chicago) began producing unauthorized printings of sheet music – the >melody of _GMTA _with the lyrics changed to _HBTY_. Its possible the >Hills were unaware of these printings, but if they were we might assume >from their lack of legal action that full recognition of _HBTY's >_massive market potential was still a few years off. On June 5th 1916 >Mildred Hill passed away and her sister, Jessica Hill inherited a 1/5th >interest in the renewal rights to _Song Stories for the Kindergarten_. >In 1921 she filed a timely renewal on that claim with the copyright >office. > >Clearly the Hill family had a solid general understanding of copyright >matters. Two examples will exemplify that fact. Patty Hill, according to >first-hand accounts, attended a production of _As Thousands Cheer_ >produced by Sam H. Harris Theatrical Enterprises. During a birthday >celebration scene, actors sung the lyrics of _HBTY_ to the tune of >_GMTA_, which (whether she was “enraged” or not) lead to accusations of >copyright infringement by Jessica Hill who sued the theatrical group in >the case of _Hill v. Harris_ in August 1934. ([view complaint][15]) > >Later that year (December 29th 1934) permission to use the _GMTA _melody >was granted by Jessica Hill to the Clayton F. Summy Co., who began >printing collections of sheet music containing the _GTMA/HBTY_ >combination. Clayton F. Summy then filed for copyright on 6 arrangements >of the work, of which 4 were instrumental and 2 included _GMTA/HBTY_. >The two arrangements with words were credited to Preston Ware Orem and >Mrs. R. R. Forman respectivly, as employees of the Clayton F. Summy Co. >Orem's claim was for “Arrangement as easy piano solo, with text.” >Forman's was on arrangement and “revised text” which consisted of this >additional verse: “May your birthday be bright, full of cheer and >delight.” A nice verse but, commercially insignificant today due to >infrequency of use. ([view original application][16]) > >In the interest of time, we're going to fast forward now to 1958, after >Summy F. Clayton Co. had been sold to the Sengstack family and was now >run by David Sengstack, who merged with C.C. Birchard Company to create >Summy-Birchard Co. This company published several collections which >included _GTMA/HBTY_, and with much variation in accreditation. [Hill- >Wilson][17], [Hill-Dahnert][18], “[traditional][19]”, and [Patty (Patti) >& Mildred Hill][20] at one time or another all got props in the credit >mix – a curious state of confusion when we consider that by the 1940s >_GMTA/HBTY_ was earning approx $15k-$20k per year in licensing fees. > >[![Summy-Birchard's approved renewal][21]][22] > >Summy-Birchard's approved renewal > >In 1962, licensing revenues were nearly $50k/year and in an effort to >protect that cash flow, Summy-Birchard Co. filed for and successfully >renewed their claim. Here we find problem one: the renewal mirrored >exactly the 1934 registrations, with the exception of updating the >Clayton F. Summy name to Summy-Birchard Co. The 1909 Copyright Act >stated that the original term of copyright was obtained by publication >via proper notice. Registration was not necessary during initial terms, >but it was necessary for renewal. If the work sought to be renewed had >not been previously registered, applicants could submit both an original >registration & renewal at the same time, along with the deposit copies >of the work being renewed. Summy-Birchard Co. never submitted an >original registration for the _GMTA/HBTY_ combination. No one has. > >In other words, the 1962 renewal is valid regarding the Orem & Forman >arrangements (piano solo, extra words) but not lay a specific claim on >the _GMTA/HBTY_ combination. Assume for the sake or argument that Summy- >Birchard's renewal was found to be valid – that the lack of original >registration was simply a paperwork error or something we can blame on >an intern. Summy-Birchard Co. would still need to prove its 1934 >registration of _GMTA/HBTY_ was valid to begin with. > >Back in October 1942 the case of _The Hill Foundation, Inc v. Clayton F. >Summy Co._ parties disuputed whether Jessica Hill has previously >assigned copyright of_ Song Stories for the Kindergarten_ to Clayton F. >Summy, or merely assigned it for limited-run printings. When we consider >that in_ Hill v. Harris_, the Hills were trying to assert and protect >their copyright, I find it highly suspect they would have assigned >rights away to Clayton F. Summy. During litigation, Clayton Summy Co. >obtained a 1/8th interest in _Song Stories for the Kindergarten_ through >other legal, if not slightly sneaky means. > >One William Hill had an interest in _Song Stories for the Kindergarten_ >through inheritance. He died in 1934, named his wife Corinne executrix >of his estate, she died in 1939, and executrix to her estate, Leo B. >Lowenthal then curiously petitioned the Probate Court of Cook County, >Illinois to have himself withdraw from that representation & to have the >court appoint one Allen Davy. This Davy fellow approved an inventory of >the estate at the shockingly low figure of $15. He then persuaded the >court to hold a private sale in which the inventory was sold to Clayton >F. Summy for $25.00. Clayton F. Summy argued that it had an interest in >_GMTA/HBTY_ as a previously unpublished work from the estate. However no >mention of, and in turn no transfer of unpublished works actually took >place! Giving Clayon F. Summy the full benefit of the doubt here, let's >look at the issue of whether the Hill's actually authored _GMTA/HBTY_ to >begin with. > >[![Hill v. Harris testimony][23]][24] > >Hill v. Harris testimony > >Back in _Hill v. Harris_ Patty delivered some testimony that causes >serious doubt on the Hills' claim of authorship and in turn, Clayton F. >Summy's claim of copyright interest. Patty stated (1) that she wrote >words for the published version of _GMTA _(as asingle verse, which did >not include _HBTY _lyrics), (2) that she, or she and Mildred, wrote >“many other verses” to _GMTA_; and (3) that the _HBTA _words were “used” >at school celebrations. She stops short of claiming she specifically >"wrote" _HBTY_. So with Clayton F. Summy unable to prove an interest in >renewal and the Hills unable to prove original authorship, the case of >_The Hill Foundation v. Clayton F. Summy_ was settled out of court and >both parties shared licensing profits. > >To recap: due to Summy-Birchard Co.'s failure to properly renew in 1962, >_GMTA/HBTY_ would have entered the public domain. If this failure were >to be dismissed as an excusable accident, we are still absent any >document which proves beyond doubt that Mildred and or Patty Hill, the >most plausible authors of the _GMTY/HBTA_ combination, actually wrote >it. Absent that proof, WMG only has an interest in the additional >copyright matter (piano solo and 2nd verse) registered to Orem & Forman >in 1934. While valid, those are separate matters from the _GMTA/HBTY_ >combination. A rote, uncreative variation on the earlier work can not be >registered as a derivative; there has to be some added originality or >editorial insight. The _GMTA/HBTY _as we know it today appeared >regularly in print prior to the 1930s. Neither Orem or Forman's mostly >forgotten additions had any impact on it's market potential. I believe >_GMTA/HBTY_ or simply _Happy Birthday to You_ is currently a public >domain work. While this might be the end of the legal story, there's >still for me, a moral complication. > >The Association for Childhood Education International (ACEI) was first >established in 1982 as the International Kindergarten Union. Co-founded >by Patty Smith Hill, their primary efforts were to better the >professional preparation of kindergarten teachers. Today the ACEI >partners with organizations such as the United Nations and UNICEF to >“promote and support…the optimal education and development of >children…and to influence the professional growth of educators and the >efforts of others who are committed to the needs of children in a >changing society.” Seems like something I'd donate to; maybe even score >a mug or tote bag in the deal. > >Back when _The Hill Foundation, Inc v. Clayton F. Summy_ settled out of >court, an affidavit by Hill-trust trustee Alvin J. Burnett stated all >rights in _Good Morning to All_ &_ Happy Birthday to You _were then >assigned to the Clayton F. Summy Company in 1944 in return for a one- >third share of future revenues. Years later in 1985, a lawyer for Summy- >Birchard stated “performance proceeds from _Happy Birthday to You_ bring >two ‘low six-figure” checks each year to Summy-Birchard and the Hill >Foundation.” Royalties rights were passed from the Hill Foundation to >the ACEI who's annual IRS Form 990's state that for the years 2004, >2005, and 2006, royalty income was $584, 352; $631,866; & $738,510 >respectively. $1,954,728.00 in 3 years is no small slice of pie for a >non-profit, but its eligibility is called into question by the very case >made against Warner Music Group. > >[![A young Patty Hill][25]][26] > >A young Patty Hill > >As an aside, I suggest reading Agnes Snyder's 1972 paper for the ACEI, >_Dauntless Women in Childhood Education_. In it, Snyder paints a picture >of Patty Hill as a strong, dedicated intellectual who rose from a humble >background to become one of the most important voices speaking on behalf >of progressive early childhood education in America. After reading it, I >became even _more _convinced the Hill sisters didn't pen the _GMTA/HBTY_ >combination. In all aspects of their professional careers they were >articulate and exact. While perhaps it's not court-worthy evidence, it >becomes hard to imagine _GMTA/HBTY_ would have simply slipped through >the cracks while their other works received protection through proper >notice and registration. It seems more the case that the Hill's felt >entitled to rights due to _HBTY's _similarity to _GMTA;_ and as much as >I've come to respect the Hills I'd stick to the argument that similarity >isn't enough to claim authorship. > >I'll close by humbly pointing out that I am an artist known for making >typos, not a lawyer. I believe I've presented the general argument >correctly but with speed, and suggest readers view both Braunies' paper >and beautiful collection of supporting documents. If there is a >counter-argument, let it be presented scholarly! One thing is for sure, >the story of _GMTA/HBTY_ is far from the standard folk-tale. It is a >story where the push for participatory culture, pioneering women in >education, early studies in African-American musicology, and copyright >come together. It leaves us with a looming dilemma: Do we call for a >full investigation of the copyright status of_ Happy Birthday to You_ >with knowledge that its recognition as a public domain work would result >in the loss of a major funding source for the ACEI; or does the public >find the current arrangement agreeable, in which potentially illegally >collected royalties are shared so that 1/3 goes to a respected non- >profit and 2/3 goes to the Warner Music Group? > >Further Reading: > >[http://en.wikipedia.org/wiki/Happy_Birthday_to_You][1] > >[_ Copyright and the World's Most Popular Song_][10] > >[ Brauneis' supporting documents][27] > >[ Association for Childhood Education International][28] > >_ Dauntless Women in Childhood Education [Buy][29] / [PDF][30]_ > > [1]: http://en.wikipedia.org/wiki/Happy_Birthday_to_You > > [2]: http://en.wikipedia.org/wiki/Derivative_work > > [3]: http://en.wikipedia.org/wiki/File:GoodMorningToAll_1893_song.jpg > > [4]: http://docs.law.gwu.edu/facweb/rbrauneis/happybirthday/registrat >ions/Song_Stories_Registration_Record.pdf > > [5]: http://en.wikipedia.org/wiki/Mildred_J._Hill > > [6]: http://en.wikipedia.org/wiki/Patty_Hill > > [7]: http://freeculture.org/wp-content/uploads/2010/10/800px- >GoodMorningToAll_1893_song-300x200.jpg > > [8]: http://freeculture.org/blog/2010/10/21/good-morning-to-happy- >birthday-for-all/800px-goodmorningtoall_1893_song/ > > [9]: http://investors.wmg.com/phoenix.zhtml?c=182480&p=irol- >newsArticle&ID=846717&highlight= > > [10]: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111624 > > [11]: http://www.snopes.com/music/songs/birthday.asp > > [12]: http://www.seismologik.com/storage/IMSLP46182-PMLP98489-Hill- >SongStories.pdf > > [13]: http://freeculture.org/wp-content/uploads/2010/10 >/Beginners_Book_Of_Songs-191x300.jpg > > [14]: http://freeculture.org/blog/2010/10/21/good-morning-to-happy- >birthday-for-all/beginners_book_of_songs/ > > [15]: http://docs.law.gwu.edu/facweb/rbrauneis/happybirthday/hillvhar >ris/Hill_v_Harris_Complaint.pdf > > [16]: http://docs.law.gwu.edu/facweb/rbrauneis/happybirthday/registra >tions/E_pub_45655_Initial_Application.pdf > > [17]: http://docs.law.gwu.edu/facweb/rbrauneis/happybirthday/scores/H >BTY_Ep_72792.pdf > > [18]: http://docs.law.gwu.edu/facweb/rbrauneis/happybirthday/scores/H >BTY_Ep_108379.pdf > > [19]: http://docs.law.gwu.edu/facweb/rbrauneis/happybirthday/scores/H >BTY_Twice_55.pdf > > [20]: http://docs.law.gwu.edu/facweb/rbrauneis/happybirthday/scores/H >appy_Birthday_To_You_South_African.pdf > > [21]: http://freeculture.org/wp- >content/uploads/2010/10/E_pub_45655_Renewal_R_289194-231x300.jpg > > [22]: http://freeculture.org/blog/2010/10/21/good-morning-to-happy- >birthday-for-all/e_pub_45655_renewal_r_289194/ > > [23]: http://freeculture.org/wp-content/uploads/2010/10 >/Hill_v_Harris_Depositions-231x300.jpg > > [24]: http://freeculture.org/blog/2010/10/21/good-morning-to-happy- >birthday-for-all/hill_v_harris_depositions/ > > [25]: http://freeculture.org/wp-content/uploads/2010/10/patty- >212x300.jpg > > [26]: http://freeculture.org/blog/2010/10/21/good-morning-to-happy- >birthday-for-all/patty/ > > [27]: http://docs.law.gwu.edu/facweb/rbrauneis/happybirthday.htm > > [28]: http://acei.org/ > > [29]: http://www.tcrecord.org/DefaultFiles/SendFileToPublic.asp?ft=pd >f&FilePath=C:%5CWebsites%5Cwww_tcrecord_org_documents%5C38_12621.pdf&fid >=38_12621&aid=2&RID=12621&pf=Content.asp?ContentID=12621 > > [30]: >http://www.eric.ed.gov/ERICWebPortal/recordDetail?accno=ED094892 > >URL: >http://freeculture.org/blog/2010/10/21/good-morning-to-happy-birthday-for-all/ >_______________________________________________ >Discuss mailing list >[email protected] >http://freeculture.org/cgi-bin/mailman/listinfo/discuss >FAQ: http://wiki.freeculture.org/Fc-discuss _______________________________________________ Discuss mailing list [email protected] http://freeculture.org/cgi-bin/mailman/listinfo/discuss FAQ: http://wiki.freeculture.org/Fc-discuss
