Stay Free! magazine











Search

 
Stay Free! Daily: media criticism, consumer culture and Brooklyn curiosities from Stay Free! magazine

Got a blog tip? Contact us



« US War Photos | Main | How did U-Haul that? »

Taking the permission society seriously

Charles' post about sports broadcasts just reminded me of UnhappyBirthday.com, which encourages people to warn ASCAP and Time Warner every time they hear someone singing "Happy Birthday" in public. By overwhelming clearance departments with frivolous letters, the site's creators hope to make a statement about copyright-gone-amok.

That said, perhaps a more direct way to the same end is to borrow a page from that sports guy and encourage the public to write letters any time they anticipate singing "Happy Birthday" in the near future. So, seeing as my dad has birthday coming up, I figured I'd get the ball rolling:

ASCAP - New York
One Lincoln Plaza
New York, NY 10023
licensing@ascap.com

Dear ASCAP,

The copyright status of "Happy Birthday To You" and the law related to public performances of copyrighted works have recently been brought to my attention. I would therefore like to request permission in advance to sing "Happy Birthday" to my father at Frenchy's Original Cafe in Clearwater, Florida, on October 8, at approximately 1 pm.

My father will be turning 75 on this day and will probably be ordering the Seafood Gumbo and Fried Grouper. The rest of the party will include Charles Star, my brothers Peter and Paul, their spouses Karla and Cindee, and my mother Lynn. Five of us will be singing while my brothers merely mouth the words and smile. We expect there to be approximately 50 disinterested witnesses.

I realize this is short notice but we only recently settled the details. If there is a charge for the privilege of singing in this instance, please let me know. And, if there is, please specify whether or not the cost can be reduced by moving to another location.

I look forward to your prompt reply.

Sincerely,
Carrie McLaren

Bear in mind that when Lawrence Lessig et al. tried to license "Happy Birthday" to celebrate the Free Culture movement, they waited months to get permission. So, um, I'm not holding our breath for a reply...

Posted by carrie on 09/28/2005 | Permalink

Comments

lmao

Posted by: Hillary | Sep 30, 2005 12:53:47 PM

Let me know what response you get...my father's birthday is in 30 days!

Posted by: Robin | Sep 30, 2005 7:02:04 PM

i just plagirized most of your letter, with some variations, to write my own permissions request for my own birthday in december.

Posted by: kimberly | Oct 17, 2005 11:33:11 PM

Great! I think everyone who ever plans on singing "Happy Birthday" -- or even considering it -- should send a letter.

I never heard back about my dad; his birthday came and went with nary a copyright-related incident.

Posted by: carrie | Oct 17, 2005 11:38:50 PM

The happy birthday song has been covered by so many different artists, but my personal favorite version is by the Owens Family, live October 3rd 1997 at Applebee's: Martha's Birthday.
If you haven't heard it yet you should try to find a bootleg, its freakin sweet!

Posted by: mattb | Oct 18, 2005 2:37:26 PM

Two questions:

1 ) If, as an employee of Friday's, I were to perform my duty, as outlined in my job description, and sing Happy Birthday for customers...err...guests, would I be in violation of the copyright law?

2 ) Sometimes we opt for the "short version" which is basically the same Happy Birthday song only sung with participants down on our knees (get it, short?). In doing so would we be liable for half the royalties?

Posted by: Eric | Oct 18, 2005 3:25:18 PM

but in this case its not ascap who is the bad guy. they collect on behalf of all thier members. its the greedy grandchildren of the two women who wrote the song, and the publishing company who represents thier interests who continue to enforce the copyright. they could elect to waive thier rights at any moment.
and to answer the question above, most t.g.i. fridays are licensed, or fall under the exemption laid out by the fairness in music licensing act.

Posted by: paul | Oct 18, 2005 3:35:39 PM

I have a friend who's job it used to be a couple years ago, to show up at restaurants for BMI and bust them for playing unlicensed musics.

Now, I haven't studied any o the laws about public performances recently, but I thought that if you were going to perform a copyrighted musical work at say, a club or restaurant (those places that regularly have live music of some kind), the establishments you would perform in are supposed to already be paying fees to licensing organizations so that you can do this. Not saying whether this is right or not, however, I presume this is the case... I'm pretty sure anyone in your average local band playing cover tunes someplace is good to go without prior permission.. not the same of course, as wanting to RECORD a cover tune and/or SELL a cover tune..

Posted by: jeffr | Oct 18, 2005 3:46:08 PM

Oh, man, you made me miss Frenchie's. I now live in Colorado and don't get good seafood, but the thought of their buffalo grouper sandwich still makes me drool.

Posted by: CTG | Oct 18, 2005 5:18:52 PM

Frenchy's has the best seafood gumbo. I've been trying to find a recipe for it but no luck so far. Oh, well, yet another reason to stay in Tampa :)

Posted by: Keith | Oct 18, 2005 5:26:54 PM

I was under the impression that the reason that restaurant krewes sing made up fake happy birthday songs is that Michael Jackson owns the rights to the Happy Birthday song, and they don't want to pay him for it.

Posted by: shiva7663 | Oct 18, 2005 5:28:12 PM

Any man not asking permission to use "Happy Birthday', spends the night in the box...

Posted by: Carl, The Floorwalker | Oct 18, 2005 6:41:33 PM

Thanks for the laugh. You made my day.

Posted by: Gavin | Oct 18, 2005 8:42:28 PM

If, by changing the name in the "Happy Birtyday dear ??????" part, doesn't that change the song enough to avoid the hassle? I think that it worked for Vanilla Ice.

Posted by: crseih | Oct 18, 2005 8:46:46 PM

jeffr, you actually have it right. i work for ascap in general license doing just what your friend did for bmi. many restaurants have thier own song they sing to avoid any hassle. in almost all cases, especially restaurants, the license falls on the venue rather than the performer. thus frenchie's would be accountable for obtaining the license (they are unlicensed however, because they fall under the fairness in music licensing act) unless the employees sing happy birthday on a regular basis, they are unlikely to be pursued for infringement.
i know this is just a joke, but honestly, you want someone to blame for crap like this, look at disney. they strongly lobbied for the sony bono copyright term extention that lengthed copyright from life of the author plus 50 years to life plus 70. they did so to ensure they retained the copyright to mickey mouse, whose copyright was dangerously near entering the public domain.
expect in the coming decade for talk of copyright terms being extended to life plus 90. which seems so neccisary considering the vast majorities of copyrights have ceased generating any sort of useful royalties even ten years after thier conception.

Posted by: paul | Oct 19, 2005 10:42:50 AM

Paul, this is not a joke. It's serious satire. There is a difference. It's not about finding somebody to blame. It's about trying to get the problem solved, even if that takes some goading.

The author of the request is addressing a serious issue. If you really do work for ASCAP, you should do what you can to see that it gets addressed, rather than lamely brushing it off as a joke.

Posted by: Holger | Oct 19, 2005 11:10:55 AM

>its the greedy grandchildren of the two women who wrote the song

Let's get these names out in the public.

Posted by: Holger | Oct 19, 2005 11:12:45 AM

It is disconcerting that the copyright was extended by this great of a term, but it was caused by the family's request to extend it, as they do have rights to the music/lyrics. ASCAP has nothing to do with this decision - they are only the "tax collector", not the lawmakers who enabled this to happen. If you really want to get something done, contact your local lawmakers and press for a change in US copyright law.

Posted by: Dallas | Oct 19, 2005 11:33:22 AM

Thanks for pointing this out. I just recklessly stole your letter (it's not copyrighted, is it?) and modified it for my wife's 40th birthday. We'll probably be at a hockey game, so we'll have more like 4000 disinterested witnesses.

Posted by: Mark | Oct 19, 2005 12:39:30 PM

I've been to that resturante a couple times even thoug I live in CT.

Posted by: Mike | Oct 19, 2005 12:54:44 PM

Wikipedia has an interesting article on the history of the birthday song. Looks like Time Warner owns the copyright currently...

http://en.wikipedia.org/wiki/Happy_Birthday_To_You

Posted by: Bloody Crackdown | Oct 19, 2005 1:08:24 PM

sent mine for my sisters birthday soon. even if they are only the tax collectors, im sure they have to request permission from the owner - which is who we want to bug. Im thinking of writing to Coke and asking if i may whistle their slogan tune while i wait for the bus...

Posted by: Jared | Oct 19, 2005 2:48:17 PM

fyi, My 40th birthday is November 27. And 3 months ago I emailed ASCAP a request to have a public performance of it at a park. So far I haven't heard from them. Keeping my fingers crossed!

BTW, here's a reply from one of the ASCAP Robots giving me better contact information:
*********************************
Dear Robert:
Thank you for your email. Please contact ASCAP's Clearance Department
directly @212-621-6160 or @800-952-7227. You may also email them at
ACE@ascap.com
******************************

Posted by: Robert Nagle | Oct 19, 2005 3:17:54 PM

The thing that really bothers me about this is that ASCAP is not obligated to respond to these requests. There is no default "If we haven't gotten back with you in 3 weeks, that means you can use the song" clause.

There is no autoresponse that explains when legal permission is required, or what constitutes fair use or how much these clearances typically cost. It would be so easy to send a blanket email to these kinds of requests with basic information. Instead, ASCAP does nothing, and the consumer inhabits a zone of uncertainty.

Posted by: Robert Nagle | Oct 19, 2005 3:31:14 PM

CHECK THIS OUT!
The TUNE of Happy Birthday (without words) is actually PUBLIC DOMAIN (actually written by the same person) but originally entitled “Good Morning To All” and if you just HUM the tune, the copyright doesn’t apply! You can look this up at the website
http://www.pdinfo.com/cgi/search.pl
SO, HUM AWAY!!!!!

Posted by: Bruce | Oct 20, 2005 1:13:58 AM

OH, I FORGOT.
When you get to the web address, click on PD list, and type in the title “Good Morning To All” to view the details

Posted by: Bruce | Oct 20, 2005 1:17:54 AM

Time Warner sold its music division to some private equity investors, who then took the company public as Warner Music Group in May 2005. The music publishing division is Warner Chappell Music, www.warnerchappell.com. So if you want to track down the folks who are behind ownership of Happy Birthday To You, those are the ones.

Posted by: Don | Oct 20, 2005 2:35:39 PM

robert nagle, problem is that there isnt a simple licensing structure that we could send you. the license depends on the type of establishment, the performance type, and the number of people in attendence. we have some 300+ licnese types that we issue on a daily basis. performing in a park may or may not be covered thru that cities blanket license, or it may require a concert license. again, dont think im just sticking up for the company who currently employs me. the issue lies in the copyright law itself and the interest of the publisher/writer. we simply collect on behalf of them. we dont license for any specific songs, only specifc uses. our licenses cover our entire repertory. feel free to write to warner chappel and negotiate with them a license to specific songs.

Posted by: paul | Oct 20, 2005 3:24:57 PM

That's hilarious .. I love the unhappybirthday.com site. Aside from being totaly ludacris, I think this should be illegal to make it illegal.

z0rz
Check out my blog
http://z0rz.com/blog
Featuring the $150 PC

Posted by: z0rz | Oct 20, 2005 9:00:07 PM

Any word or response on this story?

Posted by: Anuj | Nov 15, 2005 5:51:12 PM

My birthday is a week away, and still no response from ASCAP!

For Paul, I realize that you are only trying to be helpful, but think about what you have said: who has created this degree of complexity? Certainly not Congress! Certainly not consumers!

Furthermore, there is the question of publishing rates. Media companies don't do it, but they maybe should. If T/W has 300 different rates, wouldn't more fee transparency increase their revenues?

I'm an independent artist, but every time I've written to ask permission/clearance (even when I felt relatively confident I didn't need to), I've either received a no or worse, a nonresponse.

Here's the deal with me: I avoid Time-Warner merchandise or services until I can have Happy Birthday sung to me legally at my birthday party. Even if the company has played a shell game of handing off the song to a subsidiary, ultimately they are responsible for monetizing a song which properly belongs in the public domain.

Posted by: rjnagle | Nov 18, 2005 5:22:02 PM

Just for the record, I never heard back from anyone...

Posted by: Carrie McLaren | Nov 18, 2005 5:42:23 PM

I am sorry to report that today is my birthday. My attempt to get permission to sing Happy Birthday at my birthday party was unsuccessful.

Posted by: rjnagle | Nov 27, 2005 5:35:37 AM

my wedding is may 27,2007 can pls draf a letter of pemission for me

Posted by: Clay | Mar 9, 2007 10:44:25 AM

Who does own the publishing rights to "Happy Birthday to You"? ............... now a part of the giant AOL Time Warner media conglomerate. ........"Happy Birthday to You" brings in about $2 million in royalties annually, with the proceeds split between Summy-Birchard and the Hill Foundation. (Both Hill sisters died unmarried and childless, so the Hill Foundation's share of the royalties have presumably been going to charity or to nephew Archibald Hill ever since Patty Hill passed away in 1946.)

The URL for this page is http://www.snopes.com/music/songs/birthday.asp



Posted by: | Nov 5, 2007 10:32:12 AM

Post a comment

Comments are moderated, and will not appear on this weblog until the author has approved them.

If you have a TypeKey or TypePad account, please Sign In