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Monthly Archives: October 2015

The Happy Birthday Song, Batmobile, and Copyright Law

By Stephen B. Schott

Copyright law doesn’t change a lot but a pair of interesting cases came out recently involving some pop culture.

The Happy Birthday Song

dreamstime_s_17627706Are you one of those people who hears a story that sounds too interesting or curious to be true and just assumes it’s an urban legend? Do you hear a tall tale and immediately run it through Snopes? Me too. And the old “Happy Birthday” copyright tale definitely has the feel of an urban legend. It usually goes something like this:

“Did you know that every time someone plays Happy Birthday, they have to pay the guy who wrote it a dollar? And if they use it in a movie, they have to pay him a million dollars? It’s true. You can look it up.”

Ran that one through Snopes and you’ll get an article titled “HAPPY BIRTHDAY, WE’LL SUE” and an indication that the song is copyright protected. But a recent case changed that.

Good Morning to You Productions, owned by Jennifer Nelson, was working on a documentary about the song’s history when Warner/Chappell Music attempted to charge her $1,500 for the song’s use. Nelson argued the song is not protected by copyright and filed a class action lawsuit.

Federal Judge George King traced the copyright in the song. It started in 1893 when a school teacher named Patty Hill wrote a song with her sister. The song was called “Good Morning to You” and you can imagine the tune that goes along with it. The sisters gave their copyright to the Summy Company that published it in a song book.

At some point in the early 1900s, people started using the Hill sisters’ melody under the now-common “Happy Birthday” lyrics. No one knows who wrote these lyrics but in 1935, Summy Co. received a copyright for a version of the happy birthday song with the happy birthday lyrics.

Warner/Chappell acquired the rights to the copyright in 1998. Since then, the Happy Birthday copyright has generated $2 million annually in licensing fees. (Warner/Chappell donates a portion of these fees to a charity chosen by the Hill family.)

Considering Nelson’s case, Judge King ruled that “The Hill sisters gave Summy Co. the rights to the melody, and the rights to the piano arrangements based on the melody, but never any rights to the lyrics” and concluded that the copyright in the Happy Birthday lyrics was thus invalid.

Warner/Chappell can appeal the case so you can’t start using the song royalty-free in your blockbuster movie yet.

The Batmobile Lost Its Wheel

I would be happy with this for my car:

melfalc

But if you want to really trick out your wheels, you should go to Mark Towle’s Gotham Garage. The Gotham Garage recently got a court-induced makeover, however, and can’t offer any more Batmobile retrofits.

1941-pre-batmobile

(c) DC Comics 1941

The Batmobile’s history dates back to 1941, when it first appeared in a Batman comic book as a red car sporting a bat-shaped hood ornament. Since its introduction, it’s been Batman’s primary ride when he’s on the ground, making appearances in comic books, TV shows, and movies.

DC Comics, which owns the IP around Batman, sued Gotham Towle for copyright infringement in 2011, and the Ninth Circuit Court of Appeals recently held that the Batmobile is indeed a “character” protectable under copyright law.

The court held that the Batmobile “has varied in appearance over the years,” but it has certain identifying features such as (1) serving as Batman’s primary vehicle, (2) having features that give it a a bat-like appearance, (3) it is a vehicle that stands ready “to leap into action to assist Batman in his fight against Gotham’s most dangerous villains” (I can’t make these quotes up), and (4) hi-tech weapons and gadgets. The court concluded that these features render the Batmobile a “sufficiently distinctive” element of the overall Batman universe that is protectable under copyright law, and Towle’s Batmobile replicas infringed DC Comic’s copyrights in it.

In closing, the court quoted the caped crusader himself : “As Batman so sagely told Robin, ‘In our well-ordered society, protection of private property is essential.’”

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