Astrid Bovell on June 18th, 2013
This article in The Age caught our eye today and it brought about some discussion amongst us. The article briefly reports on action taken by a production company against Warner/Chappell Music for compensation relating to licensing fees charged for the song “Happy Birthday To You” which the production company alleges should not have been charged, believing the work to be out of copyright and that it should be the public domain.
Having worked in the music copyright industry for years before working at the University, it is well known to me that the song “Happy Birthday To You” is listed in APRA’s repertoire because it was one of those things that surprised me when I found out. Why did it surprise me? Because it’s so commonly used and has been for such a long time that it was hard to think that it still had copyright protection,. I was reminded (when it was shown to me), that a lot of the time “Happy Birthday To You” is sung at private parties/functions and in domestic settings – which does not require any licensing. So it’s understandable that I was unaware that the work was licensable. Outside of this was the message that just because something is widely used and has been for a long time, that doesn’t mean that it’s necessarily in the public domain.
The case described in the article will be interesting to watch. Music copyright is heavily monitored and protected and rights are updated in copyright management systems on a daily basis. It would be hard for me to imagine then that this musical work may have been mis-licensed for such a long time without someone noticing…. but then again, I seem to recall hearing THAT argument a few years ago when Larrikin Music famously litigated Colin Hay for the unlicensed use of “Kookaburra Sits in the Old Gumtree” in Men At Work’s song “Down Under”- and look how that turned out!
It’s not for me to say whether the work is in fact out of copyright – while there does seem to be an argument in this case that the copyright should have expired long ago – it will be up to the results of the proceedings to clarify this for us in time. What there is for me to say is that it’s always worth double checking the copyright status of things – especially things we take for granted!