Things You Won’t Believe Are (or Aren’t) Copyrighted

A few weeks ago, I covered the long, bizarre, and complicated history of Betty Boop and her many owners over the years. While I was researching that history, I happened to run across a surprising number of other copyright oddities. It turns out that when it comes to such a seemingly simple matter as who owns a song, play, or character, there can be plenty of monkey wrenches to complicate the picture at every turn. Here, then, are some of the more unusual copyright stories I’ve found.

Copyrighted: The “Happy Birthday Song”.

What do you sing after lighting the candles on your loved one’s birthday cake, waiting for him or her to blow those candles out? You know the song, you’ve been singing it every year since you were three or four years old, right?

It turns out that you’ve been singing a copyrighted song all those years. If you’ve wondered, that’s why they won’t sing the song at restaurants or in movies – they would have to pay a license fee of $1500 to Warner Music Group every time they sang it. Of course, you can freely sing it at your own parties, the same as you could sing or whistle your favorite Beatles, AC/DC, or Rhianna song on your own time. However, if you tried to sing that song as part of a formal performance, or if your band tried to do a cover of that song, you would have to pay up or go to court.

It turns out that “Happy Birthday (to You)” was copyrighted in 1935 by the Clayton F. Summy Company. Furthermore, the song is actually an early remix – it takes the tune of “Good Morning to All”, written by sisters Mildred Jane Hill and Patty Smith Hill and published in 1893. The original lyrics went:

Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.

The newer, birthday-themed lyrics appeared sometime around 1910-ish, and began to appear in a number of Broadway musicals, helping to popularize the song. The problem was that this blatantly violated the Hill sisters’ copyrights, and they sued to claim ownership of the new version of their song. They hired the Clayton F. Summy Company to help them claim the royalties they were owed, but ironically then had to sue the company when it registered the copyright in its own name and not theirs. In a 1944 settlement, the company gained the copyright in return for a promise of royalties to the sisters and their heirs.

After a series of corporate expansions and mergers, the song wound up in the library of Warner/Chappell, a division of Warner Music Group. They are the current owners of the song, and it will remain theirs until the copyright expires in 2030.

Or maybe not. In 2013, a lawsuit was filed against Warner Music Group claiming the copyright on “Happy Birthday (to You)” is invalid. Legal scholars argue that since the Hill sisters didn’t actually write the birthday-themed lyrics, they had no legal claim on those words. They further point out that, in a twist of fate, the copyrights to “Good Morning to All” have long since expired and therefore the original song is in the public domain. The first court ruling on this case will be handed down on February 2, so we’ll see what ends up happening soon.

Not Copyrighted: Night of the Living Dead (1968)

These days it seems that zombies appear absolutely everywhere. Video games like Resident Evil, Dead Rising, and Dead Island are just a few of the many, many video games that feature zombies as the main antagonist. Novels like World War Z have become bestsellers, entire critically-acclaimed media franchises like The Walking Dead are based on the “zombie apocalypse” premise, and there are hundreds of zombie films ranging from serious, dark horror to slapstick comedy and even teen romance.

All of these fictional “zombies” have certain key characteristics in common. They are reanimated undead corpses that feast on the living. If you are bitten by one, you will turn into one. They roam around in packs, and in most versions, they are slow and clumsy. There is a very particular reason these zombies are all basically the same across all these different stories across so many types of media. They are all based on the zombies from the 1968 horror classic Night of the Living Dead, directed by George Romero. Why do they all copy that particular incarnation of zombies? Because Night of the Living Dead is public domain. Here, if you want to, you can watch it here. Feel free to download it, it’s legal!

When George Romero made the movie, U.S. copyright laws of the time required people to register their copyrights and provide a copyright notice to receive copyright protection. Night of the Living Dead was released without a copyright notice, so it automatically entered the public domain when it was released in theaters. With no copyrights, anybody can do to the movie whatever they want, from remaking the movie to adapting the story to a novel, to, of course, taking elements from it for one’s own creations.

Imagine if Romero and his distributors had properly copyrighted the film. Only George Romero could legally do anything with zombies as we understand them. None of the movies, video games, novels, or comic books about zombies we all know and love would exist. Of course, Romero himself has always felt that he was shafted because of this mistake, but in the years since, he has made many more zombie films of his own, and U.S. copyright law has changed so that copyright status is now automatic and does not require registration or a notice.

Copyrighted: Early sound recordings

Another important change to U.S. Copyright law in the 1970s was that it extended federal copyright law to sound recordings (such as songs, sound effects, and recordings of speeches) for the first time. Prior to this, the copyrights on sound recordings were handled by state law, and under a special clause of the new federal laws, songs recorded before 1972 are still covered by the state laws of the time.

These state laws had far, far longer copyright terms than the federal standard – in some cases, the copyright lasts indefinitely. Well, not truly indefinitely. In 2067, the federal law will take over from the state ones regarding the copyright of pre-1972 sound recordings. When that happens, all those songs will enter the public domain. Until then, though, the vast majority of sound recordings will remain copyrighted, no matter how old they are.

This has created an unusual situation for songs written before 1923. The sheet music and lyrics are public domain under federal law, but in most cases any recording of the song is copyrighted under state laws. This means that if you want to record your own version of the song, you can, but you better think twice before downloading the original. There are a few public domain sound recordings, but they are slim pickings.

Not Copyrighted: Felix the Cat*

*Though there are a few strings attached.

Felix the Cat has been around for a very long time. Long enough, in fact, that the copyright has expired on his earliest cartoons. You can watch or download one of them here. Here’s another. Here, have a third.

Having said that, there are a few things you need to know before you go hog-wild on Felix the Cat. First, before you put him in your gritty reboot/reimagining with pirate robots, you must be aware that only the very, very early Felix silent cartoons are public domain. Most of the pop-culture presence the character has today dates not from those early cartoons, but from a TV series from the 1950s. Felix’s voice, the characters he hangs around during his misadventures, and his “Magic Bag of Tricks” that he uses to get out of any jam all come from the TV show. You guessed it, that TV show is still copyrighted, and off-limits.

Second, DreamWorks took out a trademark on Felix in 2007. The trademark covers DVDs, CDs, and various types of electronic devices such as cameras, camcorders, audio recording equipment, and data storage devices. It looks like DreamWorks is planning to make some Felix-branded devices for making and distributing digital media. The trademark also gives DreamWorks exclusive right to distribute DVDs, CDs, and TV compilation shows containing old Felix cartoons. Also, the trademark covers guitars. For some reason. If you want to do anything with Felix, you need to be mindful of these restrictions so you don’t violate DreamWorks’s rights and end up in court.

Copyrighted: Peter Pan (in the UK only)

In 1902, Scottish author J.M. Barrie wrote The Little White Bird, a novel that introduced a new fictional character, Peter Pan. In 1904, the stage play Peter Pan, or The Boy Who Wouldn’t Grow Up was released and became a huge hit. In 1911, the novelization of the play, Peter and Wendy, was published. All of these works are in the public domain in the United States and most other countries of the world whose copyright term is the life of the creator plus 50-70 years.

However, in the United Kingdom, a special exception was enacted into law by Parliament to extend the copyright on the play Peter Pan forever. The reason for this is that in 1929 Barrie granted his copyrights to the play to the Great Ormond Street Hospital, a hospital for children in London. The copyrights on the play have been a crucial source of income for the hospital, and under the special law adopted by the British government, anyone who performs, adapts, or publishes the play in the UK must pay royalties to the hospital. Therefore, when Warner Bros. releases their Peter Pan origin story film later this year, they can do so for free in most countries around the world but must pay up if they want to release the movie in the UK.

Speaking of strange regional oddities in copyright status…

Not Copyrighted: Popeye (in Europe)

The famous sailor-man who eats spinach and kicks butt (all in the name of his girl Olive Oyl, of course) was created in 1929 by Elzie Segar for the Thimble Theatre comic strip series. Today, he is owned by Thimble Theatre‘s publisher, King Features Syndicate. Or at least, he is in the United States. On the other side of the Atlantic Ocean, Popeye entered the public domain in 2009.

How does that work? Well, every country sets its own copyright laws, and interprets them as it sees fit. In the United States, Segar’s creation is considered a “work for hire”, meaning the copyright automatically went to the people who hired him (King Features) and will last for 95 years, not expiring until 2024. In the European Union, however, they count the copyright as having belonged to Segar all along, and since Segar died in 1938, Popeye’s copyrights expired 70 years after his death, like clockwork.

Over in Europe, various cartoonists and authors have used this as an opportunity to reimagine Popeye in new, creative ways. Of course, you won’t find these stories stateside, as they would be considered copyright infringements over here. At least, for another nine years.

Whew! Hopefully that will get the “blog-about-copyright” bug out of my system. For now.