Unhappy birthday?

June 21st, 2005 | by aobaoill |

I must admit to having been somewhat perplexed by the manner in which Creative Commons chose to celebrate the first birthday of the Free Culture Movement. As has been noted in a comment on Lessig’s site using the ‘Happy Birthday’ tune is a somewhat odd choice. Kembrew McLeod reports the odd history of the song in his Freedom of Expression:

Schoolteacher Mildred J. Hill and her sister Patty published the song’s melody in 1893 in their book Song Stories for the Kindergarten, calling it “Good Morning to All.” However, the Hill sisters didn’t compose the melody all on their own. There were numerous popular nineteenth-century songs that were substantially similar, including Horace Waters’s “Happy Greetings to All,” published in 1858. The Hill sisters’ tune is nearly identical to other songs, such as “Good Night to You All,” also from 1858; “A Happy New Year to All,” from 1875; and “A Happy Greeting to All,” published 1885. This commonality clearly suggests a freely borrowed melody (and title, and lyrics) that had been used and reworked throughout the century. Children liked the Hill sisters’ song so much that they began singing it at birthday parties, changing the words to “Happy Birthday to You” in a spontaneous form of lyrical parody that’s common in folk music.
It wasn’t until 1935 that the Hill sisters finally got around to registering a copyright on the melody and the new birthday lyrics, claiming both as their own. The years rolled on, and so did the lawsuits, of which there were many. Then, in 1988, Birch Tree Group, Ltd., sold “Happy Birthday to You” and its other assets to Warner Communications (which begat TimeWarner, which will one day give birth to OmniCorp, or a similarly named entity). The owners of Birch Tree told the Chicago Tribune that it was too time-consuming for a smaller company to monitor the usage of “Happy Birthday to You” and that “a major music firm could better protect the copyright during its final 22 years.” It turns out TimeWarner hit the jackpot when the U.S.Congress added twenty more years of protection to existing copyrights. As a result, “Happy Birthday to You” won’t go into the public domain until 2030.

Now I presume Lessig and others were aware of the controversy and the symbolic nature of this copyright case – surrounding one of the songs that is perhaps sung regularly by more people than any other – so the question that arises in my mind is: are they making a subtle point here? The Creative Commons page does go to unusual lengths to explain the complex nature of the agreements they had to enter into in order to release their own recording of the song:

Creative Commons wanted to find an appropriate way to celebrate. So we put together this version of “Happy Birthday,” sung by, we might say, some of the leaders of the free world (The EFF Staff, Mitch Kapor, Dan Gillmor, Brian Behlendorf, Ian Clarke, Jimmy Wales, Brewster Kahle, and Gigi Sohn). Of course, to do this, we had to license the rights from Harry Fox (who represent Warner Chappell Music, the copyright owner of the composition) – yes, “Happy Birthday” is still under copyright – but the folks at Harry Fox were willing to give us a pretty good deal. Unfortunately, that deal does not transfer, so while you’re free to download this version and play it “for personal use”, and free to engage in any “fair use” of the song, the rights we have to give don’t include much more than that.
This is because clearing rights to use music, under our current system of copyright is very complex. You need to clear every element you use. So in this recording, Warner’s owns the lyrics and the composition and we have a limited license to use those & make them available to you for your personal use. The loops and sounds are owned by a loop distributor and licensed to us under a limited license that means we can’t make it available to you to remix. But we own the rights in the recording in its entirety. We can – and we do – license the rights to the recording under a Creative Commons Attribution license. But because the nature of music is that the recording, the lyrics and the music are inextricably linked, to be able to exercise any of your rights in the recording under the Creative Commons Attribution license other than for personal or fair use, you will need to contact Harry Fox or Warner Chappell Music for permission to use the lyrics and composition and PowerFX to use the loops and sounds.

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