HAPPY BIRTHDAY TO GO FREE?

A little over two years ago we noted the filing of Good Morning to You Productions v. Warner/Chappell Music, a class action law suit which seeks a declaratory judgment that Warner’s putative copyright on the ubiquitous ditty “Happy Birthday to You” is invalid, along with the refund of millions of dollars in licensing fees collected by Warner over the past several years. Now, on the very week when we learned that convicted spy Jonathan Pollard will be set free after serving 30 years of a life sentence, there are developments in the “Happy Birthday to You” case that may lead to its release into the public domain long before the expiration of Warner’s copyright in 2030.

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BLURRED LINES IN MORE WAYS THAN ONE

The jury has spoken in the Robin Thicke “Blurred Lines” copyright infringement case, finding that the song infringes the copyright on Marvin Gaye’s 1977 “Got to Give it Up” and awarding the Gaye estate  over 7 million dollars in damages. The case has been framed by music industry talking heads and the press as one which deals with the line between “plagiarism” and “homage.” It is true that this case, like most intellectual property cases that go to trial, is about blurry lines and whether they have been crossed, but neither “plagiarism” nor “homage” is a concept that has any legal significance.

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A BFD INDEED: FLO & EDDIE HIT PAYDIRT

floLast year the corporate alter ego of former Turtles frontmen Howard Kaylan and Mark Volman—Flo & Eddie, Inc.—filed a class action lawsuit against Sirius XM. Their claim is that pre-1972 sound recordings, such as the Turtles’s classics “Happy Together” and “Eleanore,” which have no federal copyright protection, are nonetheless protected against unauthorized use under California state law. In a post that included our attempt to summarize the byzantine labyrinth that is music copyright law, we noted the “ambitiousness” of the claim and predicted that the case could have “broad ramifications.” If a decision handed down in the their case this week (and see 11/17/14 update below the fold) holds up on appeal, that post will merit a spot in the pantheon of gross understatement.

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HAPPY BIRTHDAY ASCAP

The American Society of Composers, Authors, and Publishers (ASCAP) is 100 years old today. I have a guest post on ASCAP’s profound influence on the course of American popular music over at the Oxford University Press blogvh0039.

DINNER AT LUCHOW’S

On a rain-soaked night in October 1913, an Irishman, a Scotsman, and a Romanian-born Jew walked into Lüchow’s Restaurant, the German sausage and schnitzel emporium on Manhattan’s East 14th Street. The punch line? The dinner those three European émigrés shared on that night 100 years ago set in motion a chain of events that has been shaping and reshaping the sound of American popular music ever since.vh0039

Victor Herbert was the English-speaking world’s preeminent composer of light opera.  George Maxwell was the American representative of the G. Ricordi music company of Milan, then as now publisher of the grand operas of Giacomo Puccini. Nathan Burkan was Herbert’s good friend and lawyer, and at age 35 America’s leading expert in copyright law. The half-dozen others who braved the elements to attend were composers of theatrical music little-remembered and only rarely heard today, along with their principal publisher, Jay Witmark. But the list of no-shows that evening (dinner had been catered and the tables set for 35 expected attendees) included Irving Berlin and Jerome Kern, who would be among the earliest and most conspicuous beneficiaries of the evening’s topic of conversation, the establishment of a means for collecting royalties for the public performance of musical compositions in the United States.

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Y-M-C-A: NO DANCING IN THE END ZONE YET, OFFICER

11WILLIS-articleLarge In one of the very first posts on this blog last year, we reported on Victor Willis’s “early victory” in his quest to recover valuable copyrights on songs he co-wrote for the Village People back in the 1970s.  (Willis, pictured here, was also their lead singer, dressed back in the day as the “cop.”) Willis was one of the first to invoke a provision of the 1976 Copyright Act that permits artists to “clawback” copyrights they may have improvidently assigned away after 35 years, upon giving two years written notice. The provision is intended to “safeguard[ ] authors against unremunerative transfers” and address “the unequal bargaining position of authors, resulting in part from the impossibility of determining a work’s value until it has been exploited”

Willis had succeeded in blocking the publishing and recording companies that presently control those copyrights from opposing his termination notice on the ground that his co-writers had not joined in it. It was an important victory, but only a provisional one, as other issues remained to be litigated and an appeal of that ruling would seem to be inevitable in due course. Thus, I was surprised to see a story posted on the New York Times website today breathlessly reporting that Willis would indeed be regaining control of “Y-M-C-A,” this coming Friday, the 35th anniversary of his original copyright assignment and, what’s more, he’s not so sure he is going to let anyone else use it. Should bands booked for weddings and bar mitzvahs this weekend be revamping their set lists?

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CHUNGA’S REVENGE

floThe lead vocals for Frank Zappa’s fine 1970 Chunga’s Revenge album were performed by a duo billed  as the THE PHLORESCENT LEECH & EDDIE. It was a badly kept secret that this was actually Howard Kaylan and Mark Volman, founders of the 60s soft rock band the Turtles, who used the pseudonym due to a lingering contractual dispute with their former label. After a brief stint with the Mothers of Invention, they began recording and touring as Flo & Eddie. Now their corporate alter ego, Flo & Eddie, Inc., which owns the rights to all of the Turtles’ master recordings (including such bona fide classics as “Happy Together” and “Eleanore”) is taking the lead in the pursuit of one of the holy grails of pre-1970s recording artists–royalties for the use of their old records by digital transmission services. Its class action suit against Sirius XM, filed last week in a California state court, has the aura of a test case which, if successful, would have broad ramifications for other broadcasters offering interactive features.

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NOT ONE PENNY FOR TRIBUTE

beatles-articleLargeMusic professor, rock historian, and guitarist John Covach has suggested that tribute bands may play an important role in the future of rock music, keeping up a live performance tradition long after the original acts are gone, much as a symphony orchestra keeps the classical repertoire alive. If so, a newly filed case reported on in yesterday’s New York Times, pitting two of the most polished and theatrical Beatles tribute acts–“Rain” and “Let it Be”– may bear watching.

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OWNING HAPPY BIRTHDAY

ruddStick around until the lights come up after any movie in which characters sing “Happy Birthday to You” (and there are probably a dozen of those every year), and one of the last credits you see will be a copyright notice for that song, noting that it was used with the permission of Warner/Chappell Music, Inc.  Warner traces its claim to the copyright in “the world’s most popular song” to some piano arrangements of it that were first published in 1935, a claim which, if valid, will not expire until 2030, thanks to various copyright term extensions. Warner’s permission to use the song in movies and other commercial settings does not come cheap. (more…)

BOOK REPORT: DEMOCRACY OF SOUND

dosI still have a Proustian experience every time I take my old vinyl copies of The Who Live at Leeds or The Mothers-Fillmore East June 1971 off the shelf.  It is not just fond memories of seeing those bands perform back in the early 70s that come flooding back.  The artless covers and handwritten labels on those official releases were Pete Townsend and Frank Zappa’s ironic acknowledgements of the then-raging market in bootleg concert recordings, and they transport me back to a time when there was no bigger thrill than getting an invitation to listen to the latest genuine, sort of speak, bootleg.  (As a future respectable representative of copyright owners, I, of course, would not have trafficked in such contraband myself.) I had some of the same rush reading Alex  Sayf Cummings’s Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century (Oxford Univ. Press), which places the concert bootleggers of my youth somewhere near the middle of a legal and historical continuum that stretches from jazz buffs of the 1930s who dubbed out-of-print recordings, to the DJs who created hip-hop mix tapes of the 1980s and 90s, to international CD counterfeiting rings of recent years. (more…)

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