One of the reasons you never hear the Happy Birthday song at your favorite chain restaurant is due to fear of copyright infringement from performing the song which was written in 1893. Well fear no more. In September 2015, a federal judge in California has ruled that the alleged owner of the copyright in the song (Warner/Chappell) never had the right to charge for use of the song by third parties. The copyright the company relied on was for a specific piano arrangement of the song—not the original song itself.
Originally, the song was entitled “Good Morning to All” and was written by a Kentucky school teacher and her sister. The song gained widespread popularity and eventually became known as the Happy Birthday song when new lyrics were ascribed to it. As recently as this year, companies were paying many thousands of dollars for rights to perform the song. There was no question that the song itself had gone into the public domain—the issue was the Happy Birthday lyrics. Judge George H. King ruled that the sisters who wrote the song never made a copyright claim to the Happy Birthday lyrics. So it is unclear at best who owned the rights to such lyrics and determining that now would be an almost impossible task.
So now you may hear the familiar Happy Birthday tune and lyrics out in public on a much more regular basis. The lyrics have not been formally placed in the public domain, but based on this recent ruling, it is unlikely that there will be any more royalties paid to Warner/Chappell—a company that has received millions of dollars in royalties over the years.
Before building a tower, consider the cost. Many startup companies start with great intentions but their forecasts for revenue generation are too optimistic and there is not enough capital to sustain the business until it becomes established. Another related issue for companies seeking investors is failure to ask for enough money. Ask for what is needed with an eye toward some rainy days ahead.
- Failure to Protect Intellectual Property
Patent protection is what most companies think of when it comes to intellectual property and owning a patent is a great way to exclude your competition. However, companies that are not eligible for patent protection often assume that intellectual property is not something for them. In the process, trademarks and copyrights are overlooked. Every company has access to intellectual property rights—it’s just a matter of finding what you can protect for your company. Assume you have something worth protecting, find out what it is, and take the steps to formally protect your intellectual property.
- Not Finding the Right Market
Most companies offer a product or service that meets the needs of a particular market or group of people. Identifying that group is crucial in establishing early sales and driving a consistent stream of revenue to the company. When a company fails to identify a particular and correct target market, marketing efforts are spread too thin and the company message is not communicated efficiently to the people that need to hear it. Find your niche and drive your message home in your target market.
The differences between patents, trademarks and copyrights are not obvious to the casual observer, and these terms are often intertwined or misused with one term for the other. To set the record straight, here are some practical ways to think through the differences between these types of intellectual property.
Patents are rights bestowed by the federal government to inventors of a new utilitarian apparatus or process, a new design, or a new plant variety. The patenting process is a formal application process that must be made through the U.S. Patent & Trademark Office. The patent right is the right to exclude others from making, using, selling, offering for sale or importing whatever is claimed in a particular patent. The term of a utility patent is 20 years from the filing date of the application.
Trademarks are symbols used to designate a source of a good or service. An important function of trademark law is to protect the consumer so that consumers can be confident in the sources from which they buy goods or services. No formal application process is required to obtain trademark rights. However, there are many good reasons to consider taking formal steps with the U.S. Patent & Trademark Office to protect your trademark through a formal application process. Trademarks have no expiration date.
Copyrights protect the expression of information when such information is placed in a tangible medium of expression. Examples include photographs, art work, music, books and computer code. No formal process is required to obtain copyrights in your original works of authorship but, as with trademarks, there are many good reasons to consider taking formal steps to register your copyright. Compared with patents and trademarks, the registration of copyrights is relatively inexpensive. The term for a copyright is typically the author’s life plus 70 years.
Many artists and creative product producers are aware that ownership of a copyright occurs automatically when an author of an original work places that work into a tangible medium of expression. Because this happens automatically, many feel that taking the extra step of registering their copyright with the U.S. Copyright Office is an unnecessary extra step. Regarding ownership, this is true. There is no need for an author of an original work to register the work in order to own the copyright in the work.
The issue changes, however, when an author desires to enforce his or her rights against a third party. In order to properly file a lawsuit to enforce a copyright, the filer must have at least first filed to register the work with the U.S. Copyright Office. Some federal jurisdictions even require that the work be registered before suit can properly be filed.
Perhaps the most important reason to register a copyright in a work is to be able to benefit from the statutory damages provisions of the U.S. Copyright Act. If a work is properly registered before infringing acts occur, the owner of a work can elect statutory damages instead of having to prove actual damages. This can save a tremendous amount of money in litigation. Statutory damages can range as high as $150,000 per registered work if the infringement is shown to be intentional.
It is tempting to think, “I’ll register my work if and when someone infringes it.” But this plan won’t afford you the benefit of statutory damages. In order to be able to benefit from the option of statutory damages, a work must be registered before infringing acts occur, or at least before knowledge of those acts occurs. So the idea of waiting won’t work. The drafters of the statute purposefully included this caveat to attempt to encourage authors to go ahead and register their original works of authorship. So, do you really need to register your copyright? If you want to benefit from the statutory damages provisions of the U.S. Copyright Statute, the answer is “yes”.