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July 30, 2015

Happy Birthday to you, James William Tate

You may have heard by now that the Happy Birthday song is in copyright.  Or is it?

One of the longest copyright disputes revolves around “Happy Birthday” and whether you can use that song in your films and videos, or in live concerts and plays.   “Happy Birthday to you” has been around so long that almost no one knows who composed it.

I bet some of you might even be thinking that James William Tate had something to do with it.  Sorry, he didn’t.

James William Tate died in early 1922.  Therefore, almost everything that Tate wrote which was printed during his lifetime is in the public domain in Western Europe and the United States.  He was born in 1875.   He so he died pretty young, but if he were around today he’d set a record at 140 years old (and his stuff would still be in copyright in most of the world.)

American copyright laws changed in the early 1920s,  and again in the later half of the twentieth century.   And they changed again under George Bush Junior.

European copyright laws have also been changing.  So has copyright in the Soviet Union.

Anything published in the United States before 1922 is public domain, in the United States.  But it could still be under copyright in Europe (which includes Britain), Russia, Canada, Latin America, and elsewhere.

In Europe, copyright lasts for life plus about seventy years (give or take a year, depending upon what day you die.)  In Canada, it’s life plus 25.  In the United States, it depends on when the song was copyrighted, and if it was renewed.  If it was published since 1978, it’s in copyright for the life of the creator plus seventy years.  (Therefore, nothing written by generation x will be in the public domain for a long time.)  And in Russia, part of it has to do with what side you were fighting on during a war, or whether you fought at all.

If all this sounds confusing, perhaps you should encourage your children to become entertainment lawyers.  They can get rich over settling intellectual property disputes.

Once upon a time, before I was born, let’s say during the lifetime of James William Tate, the burden of proof was on the copyright holder.    That’s no longer the case.

During my lifetime, copyright holders no longer need to include the copyright notice to protect their work.  But, even in the old days, just because a pirate copied your work and omitted the notice, that didn’t make your work public domain.

The current copyright dispute on Happy Birthday is an interesting one.  We sang Happy Birthday to a cousin just the other day.  Were we in violation of copyright?

Probably not.  Not because we were so out of pitch, and the (partially customized) words were all over the place.  I’m not sure anyone could recognize any resemblance to the original song, but that’s not the reason.  We’ll probably find that, even if a private song is not fair use, perhaps the copyright to Happy Birthday has actually expired.

When does it expire?

Well, in the European Union, the song will be in copyright at the end of 2016, which isn’t that far away.  In the USA, that date will be 2030 at latest, unless copyright law is amended before that time.  In Canada, I think the song may already be in the public domain.

So, Canadians, sing “Happy Birthday” to your heart’s content.

As for James William Tate, many of his works were co-authored with others, who were alive less than seventy years ago.  Some of his work was first published in the United States after his lifetime.  Others may have been adapted after he passed away.  So, they may not be in the public domain as quickly as we might expect.

So, although James W. Tate and his family were involved in creating and popularizing some great music, we won’t be playing it for this birthday celebration.  Well, we might play something in Canada…

(update, this post was privately published, or otherwise not available to search engines before.  This post was actually created at the written date, but only became available to the general public much later.  So, if you see “new” posts appearing with old dates, that’s why.)