Brent A. Lorentz, The Daily Record Newswire
Earlier this fall, the United States District Court for the Central District of California issued a summary judgment ruling that put a nail in the coffin of one of the most tragically comical copyright claims of all time. After years of litigation, and undoubtedly hundreds of thousands of dollars in legal fees (perhaps more), the court concluded that the lyrics to the song “Happy Birthday” were never actually transferred to Warner/Chappell Music, Inc., the current troll that had been forcing us all to sit through awkward and unsettling performances of “original” songs during birthday feasts at our favorite chain restaurants.
To those of you that don’t know the full lyrics, I’m reproducing them here:
Happy birthday to you /
Happy birthday to you /
Happy birthday dear [NAME] /
Happy birthday to you
(No word yet on whether “You were born in a zoo / you look like a monkey / and you smell like one too” survives as a derivative work.)
The court’s opinion is actually quite interesting, as it goes through a detailed history of the song and the absence of evidence demonstrating the “Happy Birthday” lyrics were ever actually assigned. The lyrics and melody (both of which are separately protected) were originally written around 1900. The melody and other lyrical variations of the song, such as “Good Morning to You,” slipped into the public domain in 1949.
However, the various defendants in the lawsuit garnered millions of dollars in royalties over the following decades based solely on their claim to the lyrics.
Despite the entertaining historical aspects, this case illustrates increasingly apparent problems with United States copyright laws. Indeed, the fact that there is even a need to use up court time on whether or not there was a valid assignment of a repetitive, four-line song written more than a century ago starkly demonstrates a fundamental failing of our copyright system. United States copyright laws are some of the most Byzantine and irrational in the world. There are ridiculous variations on copyright term length that are almost indecipherable to the lowly layman tasked with determining whether that photograph he wants to post to Pinterest is copyrighted. Indeed, the “Duration of Copyright” circular published by the Copyright Office contains a staggering 1500 words (approximately). That’s almost longer than this article.
Moreover, in my humble opinion, the Copyright Act has gone well beyond its proper constitutional bounds. The so-called “Copyright Clause” of the U.S. Constitution, which is the basis for copyright laws (and others) in the U.S., gives Congress the authority “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
More than a century of protection seems neither “limited” nor reasonably necessary to promote writings. The seemingly endless string of copyright extensions has created at least the appearance of corruption, as the most recent extension has been pejoratively referred to as the Mickey Mouse Protection Act. Moreover, rather than promoting progress, United States copyright laws have created absurd results and opportunities for abuse as illustrated by relatively recent cases.
Sherlock Holmes & William Faulkner
In approximately the summer of 2014, the United States Court of Appeals for the 7th Circuit was forced to consider and analyze whether the primary characters of Sir Arthur Conan Doyle’s Sherlock Holmes stories (the first of which was published in 1887) had fallen out of copyright and were now part of the public domain.
The case generally involved what 7th Circuit Judge Richard Posner deemed the Doyle estate’s “extortionate” practice of demanding a relatively small licensing fee of $5,000 for any publication that involved Sherlock Holmes or related characters. The plain business strategy was to demand a sufficiently small license fee so that a rational party would simply pay the fee rather than deal with the expense of litigation.
One intrepid author, Leslie Klinger, did the right thing. Rather than succumbing to the demand, Klinger brought a lawsuit, in which he prevailed and established, once and for all, that the Doyle estate’s claims were bunk. In addition, he recovered his attorneys’ fees from the Doyle estate. In affirming the fee award, Judge Posner noted: “When a story falls into the public domain, story elements — including characters covered by the expired copyright — become fair game for follow-on authors. There is no ground known to American law for extending copyright protection beyond the limits fixed by Congress. The estate’s appeal bordered on the quixotic.
“The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the “rational” writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand….
“The willingness of someone in Klinger’s position to sue rather than pay Doyle’s estate a modest license fee is important because it injects risk into the estate’s business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923.”
Similar questionable copyright cases were filed involving William Faulkner’s estate back in 2012. The two examples include: (1) a suit against Northrop Grumman and the Washington Post for a Fourth-of-July ad that lifted the Faulkner quote, “We must be free not because we claim freedom, but because we practice it”; and (2) a suit against Sony for a quote in the movie “Midnight in Paris,” “The past is not dead! Actually, it’s not even past.” The Northrop Grumman case was settled less than two months after it was filed, suggesting that the defendants acquiesced to the Faulkner estate’s demands. The Sony case, on the other hand, went on for approximately nine months before the court dismissed the case following an undoubtedly expensive motion by the defendants. Both of these cases illustrate the opportunities for mischief that arise from copyright terms that dramatically exceed the life of the author and present windfall opportunities for heirs or assignees that provided no contribution to the original work. Additionally, similar to the Happy Birthday case, the Holmes case illustrates some of the practical problems involved in analyzing copyright claims where the work was created more than 100 years ago and where the original authors are long gone.
Some might argue that the results of the above cases show that the system works because the bad copyrights are ferreted out through litigation. But such an argument ignores the practical problems with relying on litigation to get rid of bad copyright claims. Copyright litigation is a tough animal because of how unbalanced the playing field can be, particularly when you have individuals as the potential infringers coupled with the possibility of financially devastating statutory damages under the Copyright Act.
The strategy here is nothing new. Even the expenses Klinger incurred in the Doyle estate litigation far exceeded the $5000 license fee he was asked to pay. Had he not been awarded his attorneys’ fees in connection with this litigation, Klinger would have suffered a significant loss. Moreover, had the book been published without this legal victory, and without a license, the publisher would have faced the prospect of excessive copyright infringement damages authorized by current law. A rational risk averse person will either pay the modest, yet extortionate, licensing fee or forgo the challenged expression altogether. Thus, the current copyright system both enables the squelching of legitimate expression and fair use, and enables rent-seeking. Neither result is desirable.
The road forward
As our society continues its lightning-quick transition from print and hard-copy media (books, papers, periodicals, CD’s, DVD’s, etc.) to Internet content delivery, copyright reform is going to be more important than ever before. The power of individuals to gather, modify, and redistribute virtually all available content quickly and easily will continue to make content generators and potential infringers out of all of us. Under these circumstances, it is critical that copyright laws be reformed to provide clear guidance so that legitimate and lawful use of another’s content is not squelched or burdened, while true misappropriation is properly deterred. The present system of laws does not, and likely cannot, do this.
Various reform efforts have begun to take hold through nonprofit organizations and the courts. One notable example is the nonprofit organization Creative Commons, which essentially put together legal tools designed to allow sharing and reuse of content within our current copyright system. Additionally, courts have started to recognize the undesirable effects that misuse of the current copyright laws is having on legitimate expression. In addition to the Sherlock Holmes case described above, the United States Court of Appeals for the 9th Circuit recently ruled that copyright owners must consider the fair use rights of potential infringers before sending takedown notices to internet providers under the Digital Millennium Copyright Act. Failure to consider fair use raises a possibility of recovery against the copyright holder that sent the takedown notice.
While the efforts of nonprofits and courts are promising, they are ultimately little more than Band-Aids for bullet holes. True progress will likely require substantial modification of existing law. Maria Pallante, current Register of Copyrights, presented a thoughtful and thorough 2013 law review article titled “The Next Great Copyright Act” which sets forth her views on the need for comprehensive review and revision of U.S. Copyright Law, as well as proposing a framework moving forward.
Copyright law has a greater direct impact on individuals than any other type of intellectual property law. It is in everyone’s best interest that we take notice and supply input as necessary. If we don’t, we may very well end up with another ill-conceived add-on to the existing Copyright Act. After all, Mickey Mouse only has a few more years of protection left!
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Brent A. Lorentz is a shareholder at Winthrop & Weinstine and an author on DuetsBlog.
