Very cool.
On Thu, Oct 21, 2010 at 12:22 PM, Karl Fogel <[email protected]> wrote: > 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 > _______________________________________________ Discuss mailing list [email protected] http://freeculture.org/cgi-bin/mailman/listinfo/discuss FAQ: http://wiki.freeculture.org/Fc-discuss
