Happy Birthday Copyright Lawsuit

When it comes to copyright law you can never be too careful and some major corporations are now learning that the hard way. A Federal Judge in Los Angeles recently declared that the copyright claim to "Happy Birthday to You" was invalid and now Warner/Chappell, the company who claimed the rights to the lyrics, may have to pay back decades of royalties paid for the licensing use of the lyrics as the suit is now a class-action lawsuit. They will have to pay back all the fees from at least 1988 which is when Warner Music bought Birch Tree Group, who supposedly owned the rights at that point, but they may have to pay back fees from all the back to 1935. To better understand everything it's best to look at the history of the song.

The original melody was written in 1893 by sisters Mildred J. Hill and Patty Smith Hill and was called "Good Morning to All". The sisters eventually cut a publishing deal with Clayton F Summy Co. and released a songbook called "Song Stories for the Kindergarten" which included the song. Clayton F Summy Co. filed a copyright in 1935 but this is where the dispute begins. Warner Music claims that this 1935 copyright included the lyrics to "Happy Birthday to You" but the judge ruled that the 1935 copyright was only for the melody, which has already been in public domain for decades. The judge said that it isn't clear whether the sisters actually wrote the lyrics for "Happy Birthday to You" but it is certain they never filed a copyright claim to the lyrics. Even more, the judge ruled that there is no evidence that Clayton F Summy Co. ever obtained the rights to lyrics from whomever wrote them.

What's really interesting is this doesn't officially put the lyrics in public domain. If someone were able to prove they owned the rights to the lyrics, which is very unlikely, or descendants of the Hill sisters came forward with more information then they would have a copyright claim to the song and could stand to gain a lot of money. Quite unfortunately for Warner/Chappell they will end up paying the most for this as they make millions a year from royalties from the song. Warner/Chappell also give one-third of the profits from licensing the song to the Association of Childhood Education International, a designated charity of the Hill family. In 2012 the charity's tax return showed it received $754,108 in royalties. Plaintiffs coming forward are claiming Warner charged them from $1500 to $5000 per use of the song.

The lawsuit came about when documentary filmmaker Jennifer Nelson was working on a film about the origins of the song and was told she would have to pay Warner $1500 to use the song in the film. Nelson filed a putative class action suit in federal court for the Southern District of New York against Warner/Chappell. A week later a similar case was filed against Warner in California and Nelson eventually decided to refile her suit in California as well. Through her extensive knowledge and research about the history of the song Nelson and her attorneys proved that Warner held no copyright claim. A 1922 songbook published by the Hill sisters had a version of "Good Morning and Happy Birthday" with a line right under the title saying "Special permission through courtesy of The Clayton F Summy Co" which proves that the Hill sisters didn't own the rights to the lyrics and that they were published without a valid copyright because there was no copyright filed for the lyrics. Now Nelson's lawyers and producers of the film are working to file a class-action lawsuit that could cost Warner an estimated $50 million and unless a new copyright holder is declared the lyrics will become part of public domain and could be used by anyone without having to pay any license fees. 

I'm With The Band: Guest List Etiquette for Local Bands

The guest list at a show is a very interesting thing that isn't discussed often. There are different rules for the guest list at each venue and each promotor will do their guest list a certain way. When it comes to local shows this is something that is often abused by local bands. While it seems innocent enough to want to get your friends or family into your show for free bands need to consider the implications of putting people on their list.

The obvious thing about putting people on the guest list is that is one less paying person which means less money in the door. If there are 4 bands playing and each member of each band has 1 person on the guest list, assuming there are 4 members in each band, that is 16 less people paying. If tickets are only $5 then the door is losing $80 from the guest list, a number higher than what most local bands will be paid for said show. I'm not saying that it's a bad thing to put guests on the list but if you are in a band that is drawing on average under 20 people then you shouldn't be putting anyone on the guest list except in a few situations.

1. Merch Table - You have a friend running the merchandise table.

2. Photographer - You have someone taking photos of the show (this does not mean a friend taking pictures with their phone).

3. Videographer - You have someone taking video of the show (same thing about a friend just taping with their phone).

4. Press - You have someone from the press attending the show. It could be someone from a school paper for all I care, any press to get the word out about the bands and local shows is a good thing. 

5. Music Industry - You have a record label exec, A&R rep, Sponsor rep, or anyone who has an important role in the music industry.

6. Important to Band - By this I mean someone whose help ensures the band can play. This would include someone who is lending equipment, someone hosting the band's practices,  or possibly someone who drove the band members. This does not include some friend who came with you at load-in to help you load-in. 

In my opinion every band should adhere to these rules unless they are drawing over 100 people locally on average, especially since the majority of local fans at this level are friends and family. I find it odd that so many friends of bands feel entitled to get into the show for free because they are "supporting" their friend's band by attending. 

The last thing I will mention is the girlfriend/boyfriend/significant other of a band member debacle. Some people think it shouldn't be a big deal to let them in for free and some people think they shouldn't be on the guest list. I've had door-guys at shows just let them in for free despite what the promotor says because they basically consider them part of the band. This is something that I don't see as a problem once a band can consistently draw over 20 people but if a band draws less then their significant others usually make up a big chunk of their 'fan base'. 

8 Things Every Musician Should Know About Music Publishing

One of the most overlooked and complex aspects of the music industry today is music publishing. Many musicians have no clue what exactly music publishing entails or why it is so important. The biggest reason any musician should understand music publishing is because music publishing is how musicians make money for their intellectual property. Here is a list of 8 things every musician should know about music publishing.

1. Musical Composition vs. Sound Recording - When it comes to music publishing this is a concept so important the copyright office has a singled-out page about it. The musical composition is the specific ordering and structure of musical notes, sometimes accompanied by words. The sound recording is a phono-record copy of the composition being performed in some manner. Basically, the musical composition is the actual song and the sound recording is the recording of the song.

2. Publishing Share = 50% of the song - When a song is created it automatically has two rights associated with it; publishing rights and songwriter rights. Publishing rights represent a 50% share of the song and songwriter rights represent the other 50% of a song. If a songwriter publishes their own work they will own 100% of the song. If the songwriter signs a co-publishing agreement for a 50/50 split, the songwriter owns 75% of the song. This is because the most any publishing contract can cover is 100% of the publishing rights which only accounts for 50% ownership of the song.

3. Length of Copyrights - The length of the copyright for a song lasts until 70 years after the death of the songwriter(s). If there are multiple writers then the 70 years is determined to last after the death of the last surviving author. So if you write a song that becomes a hit and it has lasting effects, your great-grandchildren or even 2nd-great grandchildren could be receiving royalty checks from your work.

4. Performance Rights Organizations - Also known as PROs, these are organizations who collect royalty fees for artists and distributes them amongst the artists accordingly. In the USA there are three societies; ASCAP, BMI, and SESAC. Most artists join ASCAP or BMI because they offer open membership but if you want to affiliate with SESAC you'll have to submit an application for consideration. In order to join any of these you will need to have a composition released in an area which the PROs issue licenses; radio, television, film, interactive streaming, mechanical reproductions, or public performance (not a performance as in you playing it live, this refers to restaurants, shops, and businesses playing songs over their speakers). The societies are currently working to pass the Songwriters Equity Act (SEA) which would re-establish many current rules including the statutory rate for mechanical licenses and royalty payment for interactive streams (i.e. pandora, spotify, etc).

5. Mechanical Licenses - A mechanical license is the licensing of a copyrighted musical composition for use on CDs, records, tapes, and certain digital configurations. You can think of it as a mechanical reproduction of a copyrighted musical composition or the sale of one. A mechanical license does not give the right to sample from any phonorecord of the original recording, it just allows the reproduction of the composition. In the USA these licenses are mostly issued through the Harry Fox Agency but there are smaller agencies who also collect the royalties from mechanical licenses.

6. Synchronization Licenses - A synchronization license is the licensing of a copyrighted musical composition for synchronization to a visual media outlet. In layman terms it is a license to use a composition in a tv show, movie, video game, advertisement, promotional video, or any other visual media. Similar to the mechanical license a synchronization license does not give the right to use any part of the studio sound recording, this would require a Master Use License issued by owner of the recorded work (often a record label).

7. Publishing Contracts - Signing a publishing contract is kind of similar to a record contract in that you are given an advance (basically a loan) which is often recouped through the royalties earned. A music publisher's main role is to collect royalties for the songs in it's catalogue and distribute them accordingly. Many music publishers also actively sell the songs in their catalogue and maintain relationships with other personnel throughout the entertainment industry who buy music. MOST IMPORTANTLY, you do not need to sign a publishing contract to copyright your music, license your music, or collect royalties for your music. Signing a publishing contract is very risky and should be done only after consulting your lawyer (if you are offered a deal and don't have a lawyer, find one). It can be quite profitable to team up with a music publisher as they can help advance your career quite heavily but it isn't necessary.

8. Copyright Royalty Board - Also known as the CRB, this is the board which decides the royalty rates for copyright statutory licenses. The board consists of three judges who are appointed by the Librarian of Congress. The board currently consists of; Suzanne M. Barnett(Chief Copyright Royalty Judge),David R. Strickler, and Jesse Feder. Each judge must be an expert in either economics (Strickler), copyright (Feder), or adjudication and trial procedure (Barnett).