You Shouldn't Have to Pay Warner Music to Sing 'Happy Birthday'

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A consortium of performers and attorneys is challenging Warner Music Group’s copyright claim on “Happy Birthday.” Lucas Jackson/Reuters

You have been there, at the restaurant, and it's someone's birthday. Here come the wait staff, and they start to sing the song. Except that it is not the song. It is some other song, often with the same lyrics but with a different tune.

The new song can be creative and fun, to be sure. But the weird reality is that these waiters are not allowed to sing the song, unless the restaurant is willing to cough up a licensing fee to the song's owners.

Of all songs that seem to be part of the common cultural experience of humankind, this one tops the list. So it is something of a shock to learn that one company, Warner Music Group, claims to own and control it, and thereby has a right to wet its beak with every performance.

Warner rakes in millions every year. It has long enforced its copyright claim with its deep pockets, effectively intimidating everyone with the threat of government coercion.

Warner claims that its copyright dates back to 1935. Then it was renewed, and it won't expire in the United States until 2030, at which point it will be legal to sing it, free of charge. Unless you are in Europe. The copyright there expires at the end of 2016. There will be roughly a decade and a half during which time you can sing the song in a café in Paris but not at the Hotel Paris in Las Vegas.

What a lovely example of how rights created by statute differ so dramatically from authentic rights!

Now, to be sure, the whole basis of this claim is very shaky. In the music world, if you can find an edition of words and music on an edition published before 1923, the music in question is considered by the legislation to be part of the commons.

This convention came about with the Sonny Bono Copyright Extension Act of 1998, better known as the "Mickey Mouse Protection Act." It was a blatant case of industrial protection, forcing copyright on all works for the lifetime of the claimant, plus 70 years.

Still, and thank goodness for it, there is still a strong role for the commons. Most of the music we think of as foundational to high culture is untethered by such absurdities. This is true for Bach, Beethoven, Brahms, Rossini—you name it. It's also the same with folk music. "Old Dan Tucker" can be sung by anyone anytime.

Ownership to all this is shared by the whole of humanity. This does nothing to harm the commercial currency of the music: People still pay for marked editions, performances, recordings and so on.

The lesson here is that you don't need copyright to foster vibrant commerce in music. But you do need copyright if you are a company that wants to loot people for innocently doing a peaceful thing like publicly singing a celebratory song in a restaurant.

For those who imagine that copyright is there to protect the property of creators, the case of "Happy Birthday" is an excellent case to the contrary. It's been part of popular culture dating back to the 19th century. The melody is well documented as "Good Morning to All" and appeared in songbooks. What really happened is that a mega-big corporate monopoly plundered the commons and took exclusive possession of a non-scarce good, solely to gain monopoly rents.

Well, perhaps they pushed too far. Finally, a consortium of performers and attorneys, fed up with the nonsense, is challenging the "Happy Birthday" monopoly. And the litigators have a smoking gun, and it is rather devastating.

They found an edition of the song dated from 1922. It says it is published with special permission. But as regards copyright law, the point is that the in-print existence of this song from that period puts it squarely in the public domain.

Everyone in the industry has smelled a rat regarding Warner's claims. This little document shines the spotlight on it. It seems like the jig is up, but we shall see.

The significance of the case goes far beyond revealing a conventional case of the abuse of the system. It is indeed abusive, but the problem is deeper: It is the system itself. Authentic property rights are not established by positive legislation, forever tweaked according to lobbying pressure and turning on tiny details of dates and intricacies of publishing history.

Authentic property rights extend from the physical nature of things: This is mine, this is yours, this is his and this is hers. Property is based on exclusive control. Such a thing is not possible as regards a tune. Once a tune is heard, it belongs also to the hearer.

For this reason, the reform of the system needs to go far beyond reducing the influence of predatory rent seekers. It must question the existence of supposed "rights" that only exist due to government intervention, "rights" that actually amount to a fundamental attack on free-market competition.

F.A. Hayek, who consistently opposed copyright as a government imposition, saw this clearly, writing in 1948 that:

The problem of the prevention of monopoly and the preservation of competition is raised much more acutely in certain other fields to which the concept of property has been extended only in recent times. I am thinking here of the extension of the concept of property to such rights and privileges as patents for inventions, copyright, trade-marks, and the like.

It seems to me beyond doubt that in these fields a slavish application of the concept of property as it has been developed for material things has done a great deal to foster the growth of monopoly and that here drastic reforms may be required if competition is to be made to work.

But how can industry work in the absence of legislatively created monopolies? Here is where real-life experience outsmarts all the blinders of the intellectual classes.

There are many goods over which copyright is not enforceable, and yet they work just fine. The fashion industry exists without it. Every new design in every season can be copied by anyone. And it happens all the time. The expectation is baked into the sales model. Instead of government-protected monopoly, we get a highly competitive, fast-moving industry that serves all classes and tastes.

Another fascinating case is the perfume industry. Scents cannot be copyrighted and patented. They can all be reverse engineered and sold for a fraction of what the cosmetic counter and Bloomingdale's are trying to sell them for. This happens every day. And yet, somehow and seemingly miraculously, the industry is gigantically profitable ($30 billion a year), and plenty of people still pay $70 per bottle, just for the guarantee of quality and the prestige that comes with using the original.

It's been 16 years since Napster was taken down in the interest of protecting the music monopoly. The takedown did nothing to stop file sharing and piracy. In fact, as a result of it, the industry has come around to see the commercial advantages of sharing.

Most artists today put their music up at zero cost on YouTube and see commercial sales through advertising and digital purchases of albums and songs, plus performance contracts and the swag that comes with it.

Indeed, at every stage of technological advance in the music industry, voices of doom warned of the coming apocalypse when new music would be no more. And yet, at every stage—records, radio, tapes, digital file sharing—the result has been the opposite. The industry as a whole is more profitable than ever. And there has never been a time in history when such a variety of music has been available to so many at such low prices.

Copyright was invented in the analog age, and its utility has been systematically undermined in the digital age of ubiquitous information sharing. Nearly every dance party and nightclub in the country (and nearly every individual, for that matter) stands in violation of the law, and everyone knows it. The industry uses the prevailing restrictions and privileges to selectively plunder people whenever they get the chance, sort of like liquor control agents at the height of Prohibition.

Somehow, the comical scene of servers at restaurants trying to sing something, anything, to celebrate a customer's birthday underscores the absurdity of the entire racket. If the "Happy Birthday" monopoly falls, and it surely will, we'll have taken a giant leap toward a future without government-created art cartels. Music can be free like speech without being free like beer.

Maybe by this time next year, your waiter will be permitted to sing you a song that celebrates your birthday. No one is hurt. As they say, anything peaceful.

Jeffrey A. Tucker is a distinguished fellow at the Foundation for Economic Education. This article first appeared on the FEE website.​

You Shouldn't Have to Pay Warner Music to Sing 'Happy Birthday' | Opinion