Could copyright crash your birthday party?

Did you know that copyright in the song birthday cake“Happy Birthday to You” belongs to the Warner/Chappell publishing house? Well that’s what they claim. They say they bought it in 1988 for a cost of $25 million. Don’t feel too sorry for them though because it’s thought that since then those rights have guaranteed them an annual windfall of $2m in re-use fees.

This has all come to light lately because a US film-maker is taking Warner/Chappell to court to challenge their claim and return the song to the public domain.

It’ll be interesting to see how the court case pans out, but let’s assume for a while that Warner/Chappell *do* own the copyright in the song as they claim. What would the implications be? We’ve all sung this song at birthday parties. Might we have been breaking the law all this time??

First let’s consider the legal situation. Although the song originated in the US and the publishers are based there, we are in the UK so UK law would apply.

Might the copyright have expired? There may be two separate types of copyright in a song: lyrics and music. In the UK, copyright in “literary works” (which would apply to the lyrics) and “musical works” (er, the music) expires seventy years from the end of the calendar year in which the author or composer died. If the music first appeared in the late 1800s and the lyrics in 1911 then it’s possible that copyright *has* expired. We could do a bit more digging here to try and check this…

There are a number of “acts” which are “restricted” under UK copyright law. These are actions which under certain circumstances might be illegal. One is copying the work, another is “issuing copies of the work to the public”, yet another is “performing” the work.  “Performing” might be an optimistic description if your experience of birthday parties is anything like mine but maybe we should check whether or not our singing is in tune with copyright legislation.

So what type of “performance” might be a problem? Well the law says that there could be copyright issues with performing “in public”. Typically, its definition of what might constitute a “public” performance is very brief but it does include “any mode of visual or acoustic presentation, including…a sound recording, film or broadcast”. That might explain why it’s film makers who have particularly fallen foul of Warner/Chappell.

But does that mean we are breaking the law if someone has filmed us singing “Happy Birthday to You” at a party? The idea might seem preposterous to you but if this is a song still in copyright whose rights belong to a major U.S. publishing house (and of course the jury will literally soon be out on this), then there might be an issue here.

The trouble is that there’s nothing in the wording of the law which categorically says it’s OK to sing someone else’s song and make a film of yourselves doing so. And that’s why, when anyone asks me a copyright question, I generally answer something along the lines of “well, no actually, that’s not strictly allowed by copyright law”. Welcome to my world.

As ever in these cases, we’d need to ask what are the risks? If I’m just making a film to share with my family? And maybe adding it to Facebook or YouTube? These are both freely available websites (alarm bells?) but haven’t hundreds (thousands?) of people already put up films of themselves or others singing other people’s songs and not got into trouble for it? Surely it would be OK?

Well yes, probably. This is often the way my copyright enquiries end up. I can tell you that there’s unlikely to be anything in the law which allows this, but what risk are you running? I’m afraid that’s for you to decide.

I’ve just discovered that today is Boris Johnson’s birthday! Altogether now…

(Image: Birthday Cake, Creative Commons via Will Clayton)

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