Happy Birthday Copyright
Copyright law: Happy Birthday
Is Bobby Bandleader violating the copyright of Johnny Singstealer?
Legal concept(s)
According to copyright law, the owner of a copyright has the exclusive right to: "reproduce the work in copies; to prepare derivative works based upon the work; to distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; to perform the work publicly; to display the copyrighted work publicly," and "in the case of sound recordings, to perform the work publicly by means of a digital audio transmission" (Copyright infringement, 2012, Copyright.gov).
Of course it is true that many people sing Happy Birthday every day and do not have to pay royalties as a result. But when they do so, they are singing for their own pleasure, not to receive monetary compensation. If I sing in the shower, I cannot be sued by the Beatles or the Rolling Stones for copyright infringement, but if I perform one of their works without attribution for a profit and do not honor their copyright, I can be sued. In the case of Bobby Bandleader, he is financially profiting off of the song. The fact that he is producing his own version of the song does not waive the original copy holder's right to profit from the text.
Analysis/Conclusion
Technically, according to the law, 'Happy Birthday' cannot be sung unless the venue is confined to a social setting of family acquaintances. However, the law is rarely enforced, even when 'Happy Birthday' is used in a commercial venue such as at restaurants when customers are publically assaulted with being sung the tune (Happy Birthday, we'll sue, 2007, Snopes). This is a fairly unusual case and the profits garnered from singing are fairly small. Also, even if Bandleader had not sung 'Happy Birthday' he still sings enough songs on his playlist to draw in customers, so his profits were not solely the result of 'Happy Birthday.' Given that the harm done to the copyright holder is insignificant, a relatively small fee could be arranged to honor Singstealer's copyright and to allow Bandleader to continue to play.
References
Copyright infringement. (2012). Copyright.gov. Retrieved:
http://www.copyright.gov/help/faq/faq-infringement.html
Happy Birthday, we'll sue. (2007). Snopes. Retrieved:
http://www.snopes.com/music/songs/birthday.asp
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