Intellectual Property Law

Marley, Happy Birthday, and Me

By Mike Madison

This year, part of our family’s annual orgy of holiday film-going included Marley & Me. I usually make a point of sitting all the way through the closing credits, and that’s a good thing, too, because it took me almost two hours to notice something worth blogging about the movie.

The song “Happy Birthday to You” appears in the film, but it appears to me that the producers did not clear the rights to publicly perform it.  The closing credits include a long list of songs used in the movie. The producers cleared the rights to the vast majority of those (the credit includes “used with permission of” references, or something equivalent).

For “Happy Birthday to You,” however, the credit includes an authorship line (written by Patty Smith Hill and Mildred J. Hill, or the reverse, or something equivalent), but no “used by permission of” credit. To me, that indicates that the producers did not clear the rights to the song. Why is this notable? Because the conventional wisdom has it that “Happy Birthday to You” is still protected by American copyright law, because the owners of that copyright have collected a lot of money in recent years by licensing its public performance, and because movie producers and their insurance carriers are notoriously (though often rationally) risk-averse when it comes to using copyrighted material in commercial films.

The first, obvious question here is whether I should trust my eyes. If you saw Marley & Me, and if you’re a copyright maven and therefore scanning the credits for copyright references, did I read the screen correctly? The second question is also straightforward: Is my inference regarding clearance of rights for “Happy Birthday to You” a correct one?

If the answers to both questions are “yes,” then what is going on? Is this a situation where Bob Brauneis’s recent paper, questioning in the in-copyright status of Happy Birthday to You, is having a real world impact? The paper is on SSRN here; the appendices and related information are here. Or is this something else?

As I finished this post, it occurred to me that I couldn’t recall whether the song is performed in the finished cut of the film (this tips my hand regarding the content of my review, if I were to write one), even though there is a birthday scene, and even though the song was performed in at least one filmed version of it. (Maybe I can trust my eyes, but not my ears, or at least my short-term memory.)  It would not surprise me to learn that the industry clears rights only for works that appear in the finished film, but it would also not surprise me to learn that rights for works that are performed by the actors (and/or that are part of the working script), as opposed to those that are added to the soundtrack later, are cleared in advance.

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Full post as published by Madisonian.net on December 28, 2008 (boomark / email).