Posted on 03/19/2015 1:09:27 PM PDT by nickcarraway
The classic “Happy Birthday To You” song has been around longer than anyone can remember, however, that doesn’t mean its free and clear for singers to perform in public spaces.
At least, that’s what San Francisco’s Café International found recently, after an open mic performer sang the song to a friend in the audience. According to Hoodline, the popular Haight Street cafe was threatened with a lawsuit by the large music licensing organization BMI, which collects royalties on behalf of artists worldwide from appropriate venues.
However, according to the U.S. Copyright Act, Café International may not even be liable for the alleged copyright infringement. The owner claims that they don’t make a profit from open mic nights, meaning that there is no “commercial advantage” that would require them to pay royalties or subject them to legal action.
Still, BMI (as well as SESAC, a similar but smaller organization) has repeatedly approached the cafe with threats of lawsuits, even going so far as to secretly record performances that they claim violate the law. They have reportedly demanded that the space’s owner begin paying them for unauthorized performances, like that of “Happy Birthday To You”.
While the restaurant and cafe won’t do away with their popular open mic night, they are again reinforcing that performances must feature exclusively original music, even when it is someone’s birthday.
For comments from owner Zahra Saleh, head to Hoodline.
BS ... I suspect HB is freeware
Reminds me of Irish dancers and the reason they don’t use their arms.
"Still, BMI (as well as SESAC, a similar but smaller organization) has repeatedly approached the cafe with threats of lawsuits, even going so far as to secretly record performances that they claim violate the law."
“BS ... I suspect HB is freeware”
Agreed. I can’t believe that isn’t in the public domain at this point.
I was at a restaurant where Happy Birthday was sung last week, and I jokingly told the waiter that was going to cost him.
"The American copyright status of "Happy Birthday to You" began to draw more attention with the passage of the Copyright Term Extension Act in 1998. When the U.S. Supreme Court upheld the Act in Eldred v. Ashcroft in 2003, Associate Justice Stephen Breyer specifically mentioned "Happy Birthday to You" in his dissenting opinion.[10] American law professor Robert Brauneis, who extensively researched the song, has concluded that "It is almost certainly no longer under copyright."[1] In 2013, based in large part on Brauneis's research, Good Morning to You Productions, a documentary film company, sued Warner/Chappell for falsely claiming copyright to the song.[4][6]"
When you hear restaurant employees sing to a birthday boy/girl, it's never the actual song, but some variant.
Not true.
You have to be very careful playing, or singing, Happy Birthday in any public venue. The song is under copyright, and the rights owners often enforce them.
I think this is known by most people who make their living in the music business.
This is actually pretty common. I’ve been in a few bands the last 15 years and the whole BMI scam regarding bars and restaurants.
In one case in the northeast a bar that allowed “original only” acts was told me must pay the royalties fee (it can be over a thousand dollars a month), he refused, saying his bands only do originals. But they said they would sue because a band “might” do a cover.
So he no longer has ANY music in his venue.
I could ramble for pages on this issue.
In June 2013, a film company working on a documentary about "Happy Birthday to You" filed a class action lawsuit which seeks to invalidate Warner/Chappell's claim to copyright ownership of the song and force the company to return millions of dollars they have collected over the years for wrongfully asserting copyright owership. But that case has not been fully adjudicated, and unless and until a court invalidates Warner/Chappell's assertion of copyright ownership, the song "Happy Birthday to You" remains in a copyright-protected state. Read more at http://www.snopes.com/music/songs/birthday.asp#lpyagJuFPYWhdJ51.99
I think this is known by most people who make their living in the music business.
And you are incorrect
“Does this mean that everyone who warbles “Happy Birthday to You” to family members at birthday parties is engaging in copyright infringement if they fail to obtain permission from or pay royalties to the song’s publisher? No. Royalties are due, of course, for commercial uses of the song, such as playing or singing it for profit, using it in movies, television programs, and stage shows, or incorporating it into musical products such as watches and greeting cards; as well, royalties are due for public performance, defined by copyright law as performances which occur “at a place open to the public, or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” So, crooning “Happy Birthday to You” to family members and friends at home is fine, but performing a copyrighted work in a public setting such as a restaurant or a sports arena technically requires a license from ASCAP or the Harry Fox Agency (although such infringements are rarely prosecuted).
Read more at http://www.snopes.com/music/songs/birthday.asp#yG8ctmTFwWks5w8t.99";
This has already been litigated and Happy Birthday was removed from numerous restaurants birthday acknowledgements
My favorite HB prank...
tell the restaurant staff that it’s the B’day for one of the people you’re with....song, ice cream, the works.
Priceless expressions...
Could you be convicted because you, "might," kill someone?
Warner Bros. claims to own the copyright to Happy Birthday To You. Others claim that the song long ago slipped into the public domain.
The melody itself was pilfered from Good Morning To You which most certainly is in the public domain now.
Basically, you are probably safe no money changes hands between the performer(s) and the family of the person who is celebrating a birthday. I say probably. There can still be an issue if the situation is public enough, although (as mentioned above) this rarely happens.
But the song's owners can still make trouble for you if they want. Whether they win in court is another matter.
That’s why the “smart” restaurants come up with some variation. There’s lots of ways to sing happy birthday to someone that don’t involve the song.
Thing is, you can’t have a radio, a jukebox, a turntable, a performer, or a television in your bar if you don’t cough up to the enforcer shakedown goons in BMI and ASCAP. They will pursue you over the songs in a Burger King commercial (of course, there is no accounting of what songs were played or when so none of the collected moneys actually go to the affected performers, they look at what is commonly played these days EVERYWHERE, not per your establishment, and apportion from that).
He probably could have won, but you know how the game can be played...
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