Rupa Marya v. Warner Chappell Music Inc

Filing 332

In Opposition re: NOTICE OF MOTION AND MOTION for Attorney Fees Plaintiffs' Notice of Motion and Motion for Award of Attorneys' Fees and Expenses and for Incentive Compensation Awards; Memorandum of Points and Authorities in Support Thereof #323 /Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses filed by Defendant Warner Chappell Music Inc. (Attachments: #1 Declaration Of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses, #2 Exhibit 1 to Declaration of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses, #3 Exhibit 2 to Declaration of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses, #4 Exhibit 3 to Declaration of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses, #5 Exhibit 4 to Declaration of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses)(Klaus, Kelly)

Exhibit 2

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Copyright and the World's Most Popular Song

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Robert Brauneis
George Washington University - Law School
October 14, 2010
56 Journal of the Copyright Society of the U.S.A. 335 (2009)
GWU Legal Studies Research Paper No. 392
Abstract:
"Happy Birthday to You" is the best-known and most frequently sung song in the world. Many including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal
work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet
close historical scrutiny reveals both of those assumptions to be false. The song that became
"Happy Birthday to You," originally written with different lyrics as "Good Morning to All," was the
product of intense creative labor, undertaken with copyright protection in mind. However, it is
almost certainly no longer under copyright, due to a lack of evidence about who wrote the words;
defective copyright notice; and a failure to file a proper renewal application.
The falsity of the standard story about the song demonstrates the dangers of relying on
anecdotes without thorough research and analysis. It also reveals collective action barriers to
mounting challenges to copyright validity: the song generates an estimated $2 million per year,
and yet no one has ever sought adjudication of the validity of its copyright. Finally, the true story
of the song demonstrates that a long, unitary copyright term requires changes in copyright
doctrine and administration. With such a term, copyright law needs a doctrine like adverse
possession to clear title and protect expectations generated when, as with this song, putative
owners do not challenge distribution of unauthorized copies for more than 20 years. And
Copyright Office recordkeeping policy, which currently calls for discarding correspondence after
20 years and most registration denials and deposits after five years, must be improved to
facilitate resolution of disputes involving older works.
Over two hundred unpublished documents found in six archives across the United States have
been made available on a website that will serve as an online appendix to this article.
Number of Pages in PDF File: 69
Keywords: Copyright, Copyright Notice, Copyright Renewal, Authorship, Collective Action,
Copyright Office, Anecdotes, Happy Birthday to You, Prescription, Adverse Possession,
Copyright History
JEL Classification: K19, K20

Date posted: March 21, 2008 ; Last
revised: July 5, 2013

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Suggested Citation
Brauneis, Robert, Copyright and the World's Most Popular Song (October 14, 2010). 56 Journal of the

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Copyright Society of the U.S.A. 335 (2009) ; GWU Legal Studies Research Paper No. 392. Available at SSRN:
http://ssrn.com/abstract=1111624 or http://dx.doi.org/10.2139/ssrn.1111624

Contact Information
Robert Brauneis (Contact Author)
George Washington University - Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States

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