‘Happy birthday’ Case May Change Content Licensing Practices

Excerpted from the article:

“[The Happy Birthday to You case has] some important takeaways. Mistakes in a copyright registration, such as misstating the author or failing to identify the material, do not generally invalidate the registration. However, such mistakes can make proving ownership of a valid copyright in the work at issue difficult. The copyright owner will need to rely on extrinsic evidence, will have the burden of proof and will not enjoy the considerable evidentiary advantages of a proper copyright registration certificate. This may appear to be an issue particularly in older works and can be a difficult hurdle in newer works as well. For example, employees in a software company may have moved on and become difficult to locate, making it hard to prove authorship. Or perhaps a client has failed to keep records of the older versions of its software, so that establishing the particular deposit copy, and, therefore, the scope of the registered copyright, is difficult. Judge King’s ruling should be kept in mind: A copyright registration certificate creates an evidentiary presumption of the facts stated in the certificate.”

Questions arise as to how Warner/Chappel and other publishing companies will alter their licenses and if other companies will follow suit. “An open question is whether this lawsuit changes the licensing practices of publishing companies, other large content owners and mechanical licensors. Music licensing has evolved over the years to create a fairly efficient system. Extensive and expensive negotiations involving attorneys are often avoided. Negotiations are whittled down quickly to questions of scope of use and payment. … More “modern” companies already use their size and leverage to force unfavorable terms on, for example, musicians using Google’s Content ID program to monetize and control YouTube’s use of their music. Time will tell if the music industry will adopt similar restrictive and one-sided terms to avoid the next class action.”

Mackay and Schacht conclude by stating, “Because it settled before trial, the case has not definitively determined that disgorgement of past royalties is a proper remedy when a defendant has collected royalties for a song in the public domain. However, the practical outcome is an eye-opener for any copyright owner: One of the world’s largest publishing houses agreed to repay $14 million dollars in past royalties.”

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