POSTS TAGGED : ownership

Sing It!
Judge Rules Warner-Chappell Does Not Own Copyright in “Happy Birthday” Lyrics

Yesterday a federal judge ruled that Warner-Chappell does not own copyright in the lyrics to the song “Happy Birthday.” The lawsuit addressed only the lyrics, as the parties agreed that the music passed into the public domain long ago. The opinion is a beast, weighing in at a very dense 43 pages, and leaves the reader hanging until the very last minute.

The court addresses several issues, concluding (1) there is a genuine issue of material fact as to the authorship of the “Happy Birthday” lyrics; (2) there is a genuine issue of material fact as to whether a divestive publication of the “Happy Birthday” lyrics occurred (specifically, whether the lyrics were the subject of an authorized “general publication” under the Copyright Act of 1909 that divested the lyrics of common-law copyright protection); (3) there is a genuine issue of material fact as to whether the purported author abandoned her copyright in the lyrics; and, finally, (4) there is insufficient evidence to establish that the purported author ever transferred her rights in the lyrics to Warner-Chappell’s predecessor-in-interest.

It is important to note that, contrary to various assertions by commentators online, that the opinion does not hold that the lyrics are in the public domain. This is perhaps a wonky copyright distinction, but one that is substantively very important. The ruling holds only that Warner-Chappell does not own copyright in the lyrics. It is at least theoretically possible that some other party could come forward and establish ownership. This seems fairly unlikely, given that the song was authored in 1893 and solid evidence regarding chain of title has faded into the mists of time.

The resulting uncertainty highlights the problem of “orphan works” – works as to which it is very difficult, if not impossible, to establish ownership. The orphan works problem plagues many would-be users of works, who cannot identify or locate the owners of works they may wish to license. There have been many calls for a legislative fix of the “orphan works” problem, and we can only hope that Congress takes it up as part of the broader need for copyright reform.

In the meantime, happy birthday to everyone!

Monkey Shoot, Monkey Speak:
The Monkey Weighs In

I was indescribably relieved upon returning from my summer vacation to discover that we have not yet finished discussing the Monkey Selfie. No bona fide copyright lawyer could possibly want to see an end to this dispute. You can imagine my joy, then, when both the Copyright Office *and* the monkey himself (herself?) recently weighed in on the issue.

The Copyright Office issued a draft of the Compendium of Copyright Office Practices (3rd ed.) on August 19. The Compendium – a monumental undertaking – documents and explains Copyright Office practice and procedure, including with respect to registering claims to copyright. Chapter 300 addresses “Copyrightable Authorship: What Can Be Registered.” At Section 306, the Copyright Office clearly states, “The Office will not register works produced by nature, animals or plants. . . . Examples: A photograph taken by a monkey.”

Bananas! The monkey says. Perhaps counseled by the Cave Man Lawyer (h/t @boothsweet), and apparently having learned English from Cookie Monster, the monkey has his own highly entertaining views on the matter, which you can read here.

So Easy a Monkey Can Do It

To the delight of copyright lawyers everywhere, yesterday the infamous Monkey Selfie debate of 2011 revived itself in the wake of a transparency report issued by Wikimedia revealing that the organization refused a request by photographer David Slater to remove the photo from Wikimedia Commons. Slater traveled to Indonesia in 2011 to photograph macaque monkeys. By Slater’s own account, a monkey grabbed one of his cameras and began snapping photos, including this one . Slater apparently licensed the image for distribution, and later discovered that it had been uploaded to the Wikimedia Commons database. He demanded that Wikimedia remove the image, and the organization refused on the ground that Slater did not create the image himself and therefore does not own copyright in it. Slater’s demand, and Wikimedia’s refusal, came to light when the organization issued its transparency report. Copyright Twitter feeds everywhere immediately lit up like a Christmas tree.

Under U.S. copyright law, the author of a work is the one who created it. In wonky copyright terms, it is the person who fixed an original expression in a tangible medium. Here, Slater has publicly admitted that he did not create the photograph; the monkey. The United States Copyright Office takes the position that only human beings can be “authors.” Animals need not apply. Accordingly, this gives rise to the somewhat unusual situation where there appears to be no author as a matter of law, and thus no copyright ownership.

Of course, U.S. copyright law generally does not apply extraterritorially, and the image in question was created in Indonesia. Although both countries are signatories to the Berne Convention, which requires member nations to give each others’ nationals equal treatment under copyright law, the question of who owns the copyright in the image in the first instance may be governed by Indonesian law.

Slater has reportedly consulted with a U.S. attorney, and is supposedly considering pursuing an infringement action.