Copyright and the World\u27s Most Popular Song

Happy Birthday to You is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became Happy Birthday to You, originally written with different lyrics as Good Morning to All, was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application. The falsity of the standard story about the song demonstrates the dangers of relying on anecdotes without thorough research and analysis. It also reveals collective action barriers to mounting challenges to copyright validity: the song generates an estimated $2 million per year, and yet no one has ever sought adjudication of the validity of its copyright. Finally, the true story of the song demonstrates that a long, unitary copyright term requires changes in copyright doctrine and administration. With such a term, copyright law needs a doctrine like adverse possession to clear title and protect expectations generated when, as with this song, putative owners do not challenge distribution of unauthorized copies for more than 20 years. And Copyright Office recordkeeping policy, which currently calls for discarding correspondence after 20 years and most registration denials and deposits after five years, must be improved to facilitate resolution of disputes involving older works. Over two hundred unpublished documents found in six archives across the United States have been made available on a website that will serve as an online appendix to this article

Copyright and the World\u27s Most Popular Song

Happy Birthday to You is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became Happy Birthday to You, originally written with different lyrics as Good Morning to All, was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application. The falsity of the standard story about the song demonstrates the dangers of relying on anecdotes without thorough research and analysis. It also reveals collective action barriers to mounting challenges to copyright validity: the song generates an estimated $2 million per year, and yet no one has ever sought adjudication of the validity of its copyright. Finally, the true story of the song demonstrates that a long, unitary copyright term requires changes in copyright doctrine and administration. With such a term, copyright law needs a doctrine like adverse possession to clear title and protect expectations generated when, as with this song, putative owners do not challenge distribution of unauthorized copies for more than 20 years. And Copyright Office recordkeeping policy, which currently calls for discarding correspondence after 20 years and most registration denials and deposits after five years, must be improved to facilitate resolution of disputes involving older works. Over two hundred unpublished documents found in six archives across the United States have been made available on a website that will serve as an online appendix to this article

Understanding Copyright\u27s First Encounter With the Fine Arts: A Look at the Legislative History of the Copyright Act of 1870

In 1870, Congress made its single largest addition of categories of copyrightable subject matter, expanding copyright protection to cover “painting[s], drawing[s], chromo[s], statue[s], statuary, and . . . models or designs intended to be perfected as works of the fine arts.” For the first time, it included works not designed or intended to be created and distributed in multiple copies, and it aligned copyright with the “fine arts” as opposed to the “mechanical arts,” a revision of the earlier understanding that copyright would cover “Science” as opposed to the “Useful Arts.” Why did Congress so act?A thorough examination of the legislative history of the 1870 Act, and associated historical documents, leads to the following conclusions. First, artists sought protection for paintings and drawings in part to ensure enforceable exclusive rights for prints as the industrial organization of print production changed. Second, the drive for protection of paintings and drawings was also motivated by advances in reprographic technology, particularly color lithography. Third, expansion of an existing scheme of protection is politically easier than creating a new scheme of protection and negotiating all of the dimensions from scratch. Fourth, artists became better organized in associations like the National Academy of Design, and art publishers became substantial industrial ventures that employed dozens of workers in large factories, which increased their political visibility and power. Fifth, the proponents of expansion faced no organized opposition. Sixth, the 1870 Act’s expansion had few ties or references to earlier English expansion, reflecting the increasing independence of US legal culture from English legal culture after the Civil War

Musical Work Copyright for the Era of Digital Sound Technology: Looking Beyond Composition and Performance

For over 150 years, federal copyright law in the United States reflected and reinforced the model ofmusic as a two-stage art of composition and performance. Copyright protected scores, the stable, visually perceptible result of the deliberative activity of composition. It did not protect performances, theevanescent, unrepeatable, purely aural realizations of scores. Even as protection was extended tomusical sound recordings, copyright law has maintained a strong distinction between composition andperformance. In the last several decades, however, developments in sound technologies and their uses by musicians and listeners have substantially undermined that distinction. Written notation often no longer figures in any stage of producing a musical recording, and the roles of composer, musician andproducer are blurred as composition, performance, recording, synthesizing, sequencing, sampling, editing, processing, and mixing are accomplished iteratively within a digital environment. An empirical study of 4.5 million copyright registrations presented as part of this article demonstrates that while 86%of musical work registrations in 1978 were accompanied by deposits of written notation, by 2012 only 17% were. Copyright law, however, is still routinely interpreted to require the isolation of compositionaland performance elements of sound recordings.This article argues that copyright law should cease trying to divide musical sound recordings intocomposition and performance elements, and should recognize phonorecord-embodied musical works as a distinct category of works of authorship. It makes the case that the 1976 Act could be interpreted to accomplish that change, but it also argues that the Act should be amended if necessary. An approach that recognizes that phonorecord-embodied musical works are distinct from notated musical works andare protectable on their own terms, can potentially better serve the purposes of copyright law in at least three ways. First, such an approach would be more consistent with the basic understanding that substantial similarity in music is to be evaluated through the comparative aesthetic appeal of listening experiences. Second, it would help to enable creators of all aspects of those listening experiences to enjoy the incentives and benefits of authorship. Third, it could be a step towards recognition of unitarycopyright in some musical audio works

Transforming Document Recordation at the United States Copyright Office

For over 140 years, federal law has provided for recording of documents pertaining to copyright in one central location, at the Copyright Office and, before the Copyright Office was created as a separate unit, at the Library of Congress. Over that time, the copyright recordation system has supported a market for interests in and use of works of authorship by lowering the cost of obtaining information about ownership and by reducing unavoidable risks that threaten ownership. Yet the recordation system has not kept up with developments in technology and in business practices. This report, prepared while the author was serving as the Abraham L. Kaminstein Scholar in Residence, assesses the current recordation system and recommends that the Copyright Office implement an electronic recordation system with a variety of features that will enable it to better support copyright transactions.The report first presents information about the history and current state of copyright recordation, including the statutory framework; the recordation process; the document repository and catalog; fees, staffing, and processing times; and recordation statistics and case law under the Copyright Act of 1976. The report then recommends implementing an electronic recordation system. Based on comments to a Notice of Inquiry, three stakeholder roundtables, and additional research, the report makes nine specific recommendations about features and functions of such a system. It covers issues such as electronic signatures, certifications, remitter provision of and responsibility for cataloging information, the scope of Copyright Office screening of documents, the form of a digital document repository, redaction of documents, and additional legal incentives to record. The report also makes several additional recommendations about matters such as information gathering and handling in an electronic recordation system, interoperability and third-party enhanced services, Section 508 litigation notifications, and updating contact and “rights and permissions” information

The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law

This Article traces the change in the remedial framework of nineteenth-century owner-initiated state constitutional just compensation litigation, and explores the relationship between that change and substantive changes in just compensation doctrine. Through the Civil War, owners complaining of government-sanctioned seizure of their property brought common-law tort actions against whomever might be held liable under ordinary tort and agency law. Defendants in those suits claimed that some piece of legislation altered tort law to shield them from liability for their acts. Plaintiff owners responded that the legislation on which defendants relied was void, because it purported to authorize acts that amounted to takings of private property, but did not provide for just compensation. Within this framework, just compensation provisions in constitutions imposed disabilities on the legislature but did not impose remedial duties or provide rights of action. Part I of the Article reconstructs both the remedial framework and the basic substantive doctrine that governed antebellum just compensation litigation, and explains why that litigation took the form it did. In the 1870s and 1880s, state courts began to articulate a new frame- work for owner-initiated just compensation litigation, suggesting that a right of action for just compensation was either implied or explicit in just compensation provisions themselves. Part II of this Article traces the emergence of this new framework, and explores both the possible causes of the change and its practical significance for owners. It concludes that the change in framework had strong ties to the emergence of just compensation amendments that expanded protection to cover not just taking of private property, but taking or damage. Those amendments led courts to think of just compensation provisions as positive enactments rather than as declarations, making available a tradition of recognizing implied private rights of action under statutes, and made it difficult for courts to continue to use the common-law tort action framework, because the protection afforded by the amendments was arguably greater in some cases than common-law tort protection. In turn, the change in framework seemed to result in at least one important substantive change: owners became able to seek permanent damages in just compensation suits. On the other hand, the new implied right of action framework had little immediate impact on the doctrine of sovereign immunity

Geographic Trademarks and the Protection of Competitor Communication

Over the last 25 years, brand names that incorporate geographic terms have become easier to register immediately at the U.S. Patent and Trademark Office, without having to demonstrate acquired distinctiveness or secondary meaning. This is largely due to two developments. The first is the rise of a subjective goods-place association test, under which an examiner must show that consumers would understand the brand name as claiming geographic origin before refusing registration. The second is the Federal Circuit\u27s interpretation of the NAFTA Implementation Act as requiring a showing of materiality before refusing to register a trademark as primarily geographically deceptively misdescriptive. This article challenges the assumptions that underlie these developments. It contends that the central aim of the doctrine of geographic descriptiveness is to protect the ability of competitors to communicate information about geographic origin of goods and services. In light of that aim, the doctrine should look, not at current subjective consumer understanding of a geographic brand name, but at what competitors could use that name to communicate, and how trademark protection would burden that communication. The article also considers the treaty obligations of the United States with regard to protection of geographic trademarks, and proposes an approach that would both satisfy U.S. treaty obligations and implement sound trademark policy

Geographic Trademarks and the Protection of Competitor Communication

Over the last 25 years, brand names that incorporate geographic terms have become easier to register immediately at the U.S. Patent and Trademark Office, without having to demonstrate acquired distinctiveness or secondary meaning. This is largely due to two developments. The first is the rise of a subjective goods-place association test, under which an examiner must show that consumers would understand the brand name as claiming geographic origin before refusing registration. The second is the Federal Circuit\u27s interpretation of the NAFTA Implementation Act as requiring a showing of materiality before refusing to register a trademark as primarily geographically deceptively misdescriptive. This article challenges the assumptions that underlie these developments. It contends that the central aim of the doctrine of geographic descriptiveness is to protect the ability of competitors to communicate information about geographic origin of goods and services. In light of that aim, the doctrine should look, not at current subjective consumer understanding of a geographic brand name, but at what competitors could use that name to communicate, and how trademark protection would burden that communication. The article also considers the treaty obligations of the United States with regard to protection of geographic trademarks, and proposes an approach that would both satisfy U.S. treaty obligations and implement sound trademark policy