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Copyright of the song "Happy Birthday To You."

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The song "Happy Birthday to You" has universal appeal. Almost everyone knows its lyrics and melody, and it is sung to millions of people on a daily basis. However, what many people do not know is that the song "Happy Birthday to You" is copyrighted.

The song was written by two sisters from Kentucky in the late 19th century. They copyrighted the song many years later in the 1930s. Afterwards, the copyright to the song was sold for a large amount of money. Since then, the copyright to the song has changed hands several times. Nonetheless, the copyright still stands and is not set to expire for quite some time. As a result, any time the song is sung in a "public performance," the copyright holder is entitled to royalty payments, which bring in millions of dollars every year for the copyright holder.

Your Role/Assignment

You are an arbitrator who has recently been assigned to resolve a legal dispute between Bobby Bandleader, owner and operator of Bobby's Bistro (a local restaurant), and Johnny Singstealer. Bobby Bandleader has always been a great lover of music and his restaurant is known for its musical offerings where the staff periodically breaks into song at impromptu times, often led by Bobby himself. In fact, they are particularly well known for their birthday celebrations where any customer celebrating a birthday with the Bistro Restaurant family is serenaded with Bobby's own version of the classic "Happy Birthday to You" song. Bobby's version uses the same tune, but somewhat different wording than does the original song. He has perfected this version with over twenty years of singing it at the Bistro and it is quite good now. Bobby's rendition of the song is very popular with the locals and many people choose to come to Bobby's Bistro on their birthdays specifically for this reason.

Unfortunately for Bobby, Johnny Singstealer recently got wind of the Bistro's famous birthday activities. Johnny is the copyright holder of the "Happy Birthday to You" song and he was outraged to learn that Bobby was singing his song to customers at the Bistro without paying any licensing fee to Johnny for the right to do so. Thus, Johnny and his team of lawyers have filed suit against Bobby Bandleader and Bobby's Bistro Restaurant, seeking 1 million dollars in damages for past and present copyright abuse, as well as an injunction against any further performances of the song by Bobby until a licensing agreement is in place. Both parties have agreed to submit the dispute to arbitration to save on the costs of going to trial.

You are the arbitrator in charge of resolving this legal dispute. You have been asked by both sides to render a verdict based upon your understanding of copyright law and the facts of this case. You are to decide what amount of damages, if any, Bobby Bandleader owes for singing the song in the past, and whether or not he can continue to do so in the future, absent of reaching a licensing agreement with Johnny Singstealer. Please write a one-page ruling that details your answer and explains how and why you reached the conclusion that you did.

Bobby Bandleader, Bistro Operator

"I should not have to pay any money. Everybody sings "Happy Birthday to You." It's like a national tradition or something. Besides my version is better anyway. I harmonize it a little bit and use some different words. It's not even the same song; it's much better. That's why people love to come to my bistro to celebrate their birthday because they love how well I sing the "Happy Birthday to You" song. If I have to stop singing it or start paying out a licensing fee, I won't make as much money as I do now and I really don't want that. Times are tough as it is and I know that if I have to pay out 1 million dollars, I will have to shut down my restaurant. I worked hard to make my bistro a success and this lawsuit could ruin everything."

Johnny Singstealer, Copyright Holder

"Bobby Bandleader and his bistro are robbing me blind -- have been for twenty years now. I'm glad I finally found out what he's been doing. I inherited the copyrights to the "Happy Birthday to You" song fair and square from my family and I want what's coming to me. I need that royalty money from the song -- it's the only income I have and suing people to protect my rights is a full-time job in and of itself. I can't afford for people to be able to sing my song without paying me my money. How else am I supposed to support myself?"

Joe, Bistro Customer

"I like the food at Bobby's Bistro" it's very tasty. I like the song "Happy Birthday to You," as it was sung to me by my mother every year on my birthday, and I sing it to my kids on their birthdays. I think that people have a constitutional right to freedom of speech to sing whatever song they want to sing. However, I do believe that people should not be allowed to steal the copyright-protected works of others and perform them without paying a licensing fee."


Required: Read the scenario summary above and prepare a one-page essay rendering your decision. Please be sure to cite all sources used in APA format.

Note to the student: You are being graded on your demonstration of reasoning, critical thinking, and analytical abilities in applying what you are learning about copyright law. If you use your text or outside sources of information, please provide in-text citations and references using APA.

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Solution Summary

This is a response to a situational problem regarding the copyright laws regarding the song "Happy Birthday to You." Statutory and case laws are cited in the solution.

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Assignment: You are to decide what amount of damages, if any, Bobby Bandleader owes for singing the song in the past, and whether or not he can continue to do so in the future, absent of reaching a licensing agreement with Johnny Singstealer. Please write a one-page ruling that details your answer and explains how and why you reached the conclusion that you did.

The issue on the fact pattern of the assignment deals with copyright laws of the United States. For purposes of the one-page ruling that you have to write, I am providing you with the legal background and possible arguments in order for you to arrive at your own conclusion and complete the assignment.

Summary of the Facts of the Case:

Bobby Bandleader has been singing his own version of Happy Birthday To You for over twenty years at his restaurant. In Bobby's version of the song, he uses the same tune, but has different wordings of the song. Bobby's version of singing Happy Birthday To You became very popular and has contributed to the success of his restaurant.

Johnny Singstealer is the copyright holder of Happy Birthday To You. The copyright has not expired and is still valid. Johnny discovered the use of his song by Bobby Bandleader and has sued Bobby for copyright infringement. Bobby is seeking $1million for damages and an injunction against any further performances by Bobby.

Copyright Laws:

The copyright laws of the United States are encoded in Title 17 of the United States Code. The website to access for the copyright laws is: http://www.copyright.gov/title17/

Below are the applicable sections in the code that applies to this case. I am making annotations in blue why I feel the section applies to this case:

Section 101 - Definitions

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work".

Bobby developed his own version of Happy Birthday To You, however, he kept the same tune but changed the wording. This is considered a "derivative work" of the copyrighted song.

In a copyright infringement case, Bright Tunes Music Corp. v. Harrisongs Music Ltd., 420 F.Supp. 177 (1976) George Harrison, a former Beatles, lost his case against Bright Tunes Music Corp. over his song "My Sweet Lord." According to Bright Tunes Music Harrison plagiarized "He's So Fine," a song that was made popular in 1963 by The Chiffons. The court held that even though Harrison unknowingly copied the song, the musical elements, note patterns, and harmonies were from the "He's So Fine" song.

Therefore, since Bobby kept the same tune for the Happy Birthday To You song, but "transformed" it with his own lyrics, it is a derivative of the copyrighted song pursuant to Section 101 of the Copyright Laws. Furthermore, based on case law, as in the Harrison case, even if the tune may have been altered but still contained the same musical elements, note patters, and harmonies, Bobby's version of the song is still a copyright infringement.

A "food service or drinking establishment" is a restaurant, inn, bar, tavern, or any other similar place of business in which the public or patrons assemble for the primary purpose of being served food or drink, in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly.

The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

To "perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

To ...

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