“It’s against the law to sing ‘Happy Birthday’ on television?”
– Dan Rydell (Josh Charles), Sports Night Season 1 Episode 4 (“Intellectual Property”)
There was news this week in the long saga that has been the federal copyright lawsuit over the song “Happy Birthday”: Warner/Chappell has agreed to pay $14M to members of a class action who were wrongfully charged royalties for using “Happy Birthday”.
A federal district judge previously ruled in September 2015 that Warner/Chappell had no valid copyright claim in the song.
The song will formally enter the public domain if and when the judge accepts the settlement proposal. A hearing is scheduled for March 2016. There is language in the settlement agreement that explicitly deems the song to be part of the public domain.
Here are two takeaways for creative entrepreneurs:
First, keep good records of your intellectual property.
Legislative revision in 1976 to the Copyright Act (17 U.S.C. § 101, et. seq.) simplified the process of calculating the life of a copyright. For most works in most situations, copyright duration lasts for the life of the author of the work plus 70 years.
Even with those changes, however, it is good practice to record all of the intellectual property you own, including the date the work was created and/or the date you acquired the work. And if you did acquire the intellectual property from another person, keep records of the transaction including a copy of the Copyright Assignment or any other written agreements. It’s also not a bad idea to record all licenses you grant to others to use your works. Make a note of the party to whom you licensed the rights, the date you granted the license, and the duration and specifics of the license (e.g., territory, media, whether the license is exclusive or nonexclusive, etc.). A spreadsheet is a good method for tracking your IP.
And second, treat your intellectual property as you would real and personal property.
Protect it from being stolen you misused, like you would protect your house from burglary. Treat it as if it is priceless, like you would handle a treasured family heirloom. Keep copies of the works and intellectual property records (and multiple backups) in safe places, such as secure, encrypted Internet cloud storage.
As a final note, there’s never a bad time for a reminder that if you want to use someone else’s creative work in your own work, you’ve got to ask for permission and will likely have to pay a royalty or make some other arrangement. Asking for permission is easy and your creative enterprise legal counsel should be able to handle any request you have.