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Prof. Robert Brauneis

"Copyright and the World's Most Popular Song"
Addenda and Errata

This page contains addenda and errata for the article "Copyright and the World's Most Popular Song."
That article has been published at 56 Journal of the Copyright Society of the USA 335 (2009). A draft of the article is available at http://ssrn.com/abstract=1111624

An online archive of many documents relating to the history of the song is available at http://docs.law.gwu.edu/facweb/rbrauneis/happybirthday.htm

The addenda and errata are keyed to page numbers in the published article.

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p. 335, n.*. Acknowledgements. Prof. Justin Hughes read a draft of the article, and made thoughtful comments that led to a number of important changes. Unfortunately, the published version omitted his name in the acknowledgements, and I apologize for that omission.

p. 346 n. 43. Another ethnomusicological article by Mildred J. Hill. In addition to her article "History of Music in Louisville," Mildred Hill wrote an article for the Louisville Courier-Journal entitled "Unconscious Composers" and subtitled "The Characteristic Music of Street Cries / Dr. Dvorak's Opinion / No Music Too Low To Be Listened To. / Melody of 'Charco-o-o-al.'" In that article, she analyzes street cries of black and white vendors, and again argues that negro music will form the basis of a distinctive American music; the article is thus another piece of evidence tending to suggest that Mildred Hill was the "Johann Tonsor" who wrote the pathbreaking article on "Negro Music" in the journal Music in 1892. My thanks to Michael Beckermann for making me aware of this article and giving me a copy of it.

p. 360 & 360 n. 91. Public performance income generated by "Happy Birthday to You." The figures in the text and footnote are, as far as I know, correct, but the text mistakenly states that the amounts distributed by ASCAP to the owners of "Happy Birthday to You" in 1994 and 1995 were "well over 1% of ASCAP's total distributions for those years." In fact, given the figures reported, the amounts distributed to the owners of "Happy Birthday to You" were well over one-tenth of one percent, but not well over one percent.

p. 361. Singing "Happy Birthday to You" in Restaurants and Around Campfires. I have uncovered suggestions from two respected jurists that waiters singing "Happy Birthday to You" in restaurants would not infringe copyright in the song; one of them also contends that Girl Scouts singing the song around campfires would not infringe its copyright either. In Davis v. The Gap, Inc., 246 F.3d 152, 173 (2d Cir. 2001), Judge Pierre Leval suggests in dictum that there is a de minimus exception to copyright liability that would, among other things, protect "[w]aiters at a restaurant [who] sing "Happy Birthday" at a patron's table." David Nimmer contends that section 110(4)(A) of the Copyright Act provides a more specific statutory ground for protection of waiters in such circumstances. Section 110(4)(A) provides:

Notwithstanding the provisions of section 106, the following are not infringements of copyright: . . . performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if . . .there is no direct or indirect admission charge . . ."

Nimmer argues: "It would seem that, under normal circumstances, restaurants do not compensate staff 'for the performance.' It therefore follows that, in institutions charging no admission fee, the waiters' song likewise does not excite copyright liability." 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §8.15. But lack of compensation of performers and of an admission fee are not the only conditions stated in section 110(4)(A); it also requires that there be no "purpose of direct or indirect commercial advantage." I think one could make an argument that there is an "indirect commercial advantage" to making it known that waiters will bring out a piece of cake with a candle on it and sing "Happy Birthday to You," namely, the sale of the cake, and perhaps of dessert more generally and even of the entire meal, for people who want to celebrate a birthday at a restaurant, yet want the celebration to include the singing of "Happy Birthday to You" along with the other traditional trappings.

I agree with Nimmer that scouts singing around a campfire would seem to squarely fall under the 110(4)(A) exception.

pp. 376-377. Other versions of "Happy Birthday to You" published before 1935. In July, 2009, the database of the Dictionary of North American Hymnology went online at http://www.hymnary.org. It contains a searchable index to almost 5,000 hymnals. Twenty-one of those hymnals contain a song with the first line "Good Morning to You." These include the two hymnals published by Robert H.Coleman -- Harvest Hymns and The American Hymnal -- that contain the "Happy Birthday to You" lyrics, as reported the published version of "Copyright and the World's Most Popular Song." They also include five other hymnals published by Robert H. Coleman before 1935, and one after 1935; these probably contain the "Happy Birthday to You" lyrics as well. In addition, thirteen other hymnals are identified as containing a song with the first line "Good Morning to You" -- four before 1935, and nine during or after 1935. I will be looking into whether these contain the "Happy Birthday to You" lyrics. The cumulative evidence may suggest that hymnals had a very large role in the dissemination of the song.

p. 376 & 376 n.157. An assertion that Robert H. Coleman wrote the "Happy Birthday" words. After "Copyright and the World's Most Popular Song" was published, I received from Prof. J. Michael Raley of Wake Forest University an unpublished biographical sketch of religious music publisher Robert H. Coleman, written by his grandson Robert O. Coleman. The last paragraph of that sketch contains an assertion that Robert H. Coleman himself wrote the "Happy Birthday to You" lyrics as a second verse for "Good Morning to All," and first published them in his hymnal "Harvest Hymns" in 1924. That is, of course, a very interesting assertion, and I wish I knew more about that history. Given Jessica Hill's testimony that those words were sung in Louisville in the 1890s, and the fact that the "happy birthday" words had already been published in 1912 and 1915, it seems unlikely that the assertion is true; it seems more likely that Robert H. Coleman had heard the "happy birthday" words being sung, and was simply transcribing them. It is possible, of course, that even if someone else had previously wrote "happy birthday" lyrics to "Good Morning to All," Coleman was unaware of that fact, and independently created those lyrics. Perhaps documented independent creation of such lyrics would give some support to the argument, which I did not explore in the article, that the "happy birthday" lyrics are insufficiently creative to satisfy the originality requirement of copyright. Unfortunately, I do not have permission to publish the biographical sketch containing the assertion. Thanks to Prof. Raley for bringing it to my attention.

pp. 420-423. Prescriptive rights in intellectual property. At the time I completed work on the published article, I was not aware of three articles exploring the possibility of prescriptive rights in intellectual property, two of them focusing on copyright more specifically. While I don't think anything in these articles changes what little I had to say on the topic, others who are interested in the topic should know of the existence of these articles. They are:

Michael James Arrett, Adverse Possession of Copyright; A Proposal to Complete Copyright’s Unification with Property Law, 31 J. Corp. L. 187 (2005).
Matthew W. Daus, The Adverse Possession of Copyright, 13 Loy. L.A. Ent. L.J. 45 (1992).
Constance E. Bagley and Gavin Clarkson, Adverse Possession for Intellectual Property: Adapting an Ancient Concept to Resolve Conflicts Between Antitrust and Intellectual Property Laws in the Information Age, 16 Harv. J. L. & Tech. 327 (2003).