Court Throws Out Happy Birthday Song Copyright

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.

Three Common Mistakes Made by Startup Companies

  1. Undercapitalization

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.

 

  1. 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.

 

  1. 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.

Patents, Trademarks and Copyrights: What’s the Difference?

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.

Do You Need To Register Your Trademark?

Under the common law, trademark rights arise by use alone, so it is possible to gain trademark rights in a trademark by simply beginning to use it for your goods/services. However, there are a number of benefits to hiring a trademark attorney and registering your trademark at the federal level.

The first of these benefits is a legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide for your listed goods/services. Another benefit is the public notice function of being able to use the registration symbol, ®, to demonstrate that you have a federal registration.

Another consideration prior to launching a brand of goods or services is to have a clearance search to see if your mark is available for your selected goods/services. Often, businesses launch and invest money in marketing for a particular mark only to find out later that the mark is already in use by another company. This realization sometimes comes in the form of a cease and desist letter from the owner of the trademark who has priority of use. This can cause a great deal of waste, all of which can be avoided by investing in a preliminary trademark search.

And all trademark searches are not equal. Simply searching for federally registered marks may miss vital information. For example, another company may have a state registration but not a federal registration. The state registration can be just as dangerous as a federal registration. In fact common law trademark use can be used to cancel federal trademark registrations if the common law user has priority and there is a likelihood of confusion between the applicable trademarks. As such, it makes sense to hire a professional to conduct a comprehensive clearance search covering federal, state and common law trademarks. If the search is clear, the next step should often be to attempt to register your trademark at the federal level and enjoy the benefits of a federal trademark registration.