Merriam Webster and YouTube’s Dancing Baby Test Fair Use Doctrine While “Happy Birthday to You” Goes Free
by Charles L. Simmons, Jr., Esq. / February 16, 2016
There are always lots of surprises as the federal courts apply copyright law to an unlimited array of creative works, both old and new. Three recent court decisions are reviewed in this blog, (1) a copycat unsuccessfully tried to use the “fair use doctrine” to justify his wholesale electronic copying of the Merriam Webster dictionary, (2) a mother who posted a video on YouTube of her baby dancing to Prince’s Let’s Go Crazy can sue Universal Music for causing a takedown of the video, and (3) the purported copyright holders of the lyrics to “Happy Birthday to You” who had collected millions in license fees are told that there is no evidence that they have any legal rights to the lyrics, thus freeing the lyrics for commercial interests to use without paying.
Richards v. Merriam Webster, Inc., 55 F.Supp.3d 205 (D. Mass. 2014)
A federal district court in Massachusetts would not allow complete copying of word definitions that may have been for decades, and in some instances centuries, available for public use.
Richards recounted his early personal struggles with the English language. He eventually realized that his own mediocre reading skills could be improved if he learned the meaning of all the words in a college dictionary. Richards read the Merriam-Webster Collegiate Dictionary six or seven times. As a result, Richards’ score on the verbal portion of the SAT rose from 560 to 740. When Richards took the LSAT, he scored above the 99.8th percentile. Richards accredits much of his success to his time spent reading Webster’s dictionary.
Richards developed the concept of a “textbook dictionary” where words and definitions are presented in larger type and without multiple columns on a page so “everything wasn’t crammed together.” He wanted students and adults struggling with reading comprehension to be able to essentially read the dictionary like a book. Richards planned to disseminate his textbook dictionary to the world, free of charge.
To realize his vision, Richards downloaded 70% or more of the copyrighted Eleventh Edition of Webster’s dictionary. By some accounts in the legal filings, it took Richards about four months to complete his initial download. Richards then modified the entries for certain words by changing font sizes, adding emphasis, adding verbal illustrations, removing etymological history, removing pronunciation clues, and removing archaic and obsolete terms.
Richards sent a letter to Webster, requesting permission to use “virtually all” of the material in the Eleventh Edition for his textbook dictionary. Webster denied Richards’ request so Richards sued Webster arguing (1) that some of the Eleventh Edition’s content was available for public use; and (2) that Richards’ use of Webster’s content constituted fair use.
The District Court quickly disposed of Richards’ public use argument. The court found that Richards sought to use Webster’s entire dictionary, which is protected, and not just the individual parts of the dictionary that might be available to the public. To support his argument of fair use, Richards argued that his work was a new way of presenting stale and “crammed” content to a user to improve reading comprehension.
The court, however, determined that Richards used a significant amount of content from the Eleventh Edition and thus found in favor of Webster.
One additional point, Richards did not have an attorney in this case. His filings were cogent and his arguments had merit, regardless of the outcome. If Richards’ reading of the dictionary as a young man gave him the tools to present his case as he did, then for certain the method works.
Lentz v. Universal Music, Corp., 801 F.3d 1126 (9th Cir 2015)
Stephanie Lenz was in her family kitchen listening to Let’s Go Crazy by Prince when she turned on her video cam and asked her 13 month old son what he thought of the music. He looks at the camera and starts bobbing up and down to the music. Lenz captured her “dancing baby” on video for about 29 seconds, and posted it on YouTube on February 7, 2007.
Prince is the copyright holder to the song Let’s Go Crazy, and Universal Music is responsible for enforcing Prince’s copyrights. Sean Johnson, an assistant in Universal Music’s legal department, was monitoring YouTube and saw the dancing baby video. He decided that the video should be included in a letter to YouTube requesting that it remove the listed videos Universal believed to be making unauthorized use of Prince’s song. As a result, YouTube removed the video on June 5 and so advised Lenz by email. The video had been on YouTube for about four months.
Lenz, however, sent a counter-letter to YouTube. YouTube provided that letter to Universal Music which in turn protested to no avail. YouTube reinstated the video in mid-July. Reinstatement was not enough for Lenz so Lenz filed suit on July 24, 2007. The wheels of justice turned slowly, and in 2013 the case went to the appellate court.
The court held that copyright holders must consider whether allegedly infringing material may actually be allowed because it was used in a way permissible by law. The court also held that Lenz could proceed with her suit and even receive “nominal” damages and possibly attorney’s fees and expenses. The court sent the case back for a trial to decide what damages Lenz may be able to recover. Additionally, Lenz had a free attorney who could still be rewarded for his efforts with a statutory attorney’s fee award.
Marya v. Warner/Chappell Music, Inc., ___ F.Supp.3d ____, 2015 WL 5568497 (C.D. Ca. 2015)
Next, a federal district court in California rocked the copyright world by holding that Warner/Chappell Music and Summy-Birchard hold no valid copyrights in the “Happy Birthday to You” lyrics. Over the years, the defendants have collected millions in fees for use of the lyrics. The evidence is unclear as to who wrote the lyrics, and the possible candidates mentioned by the court are Patty Hill, Alice Jacobs, Ermina Chester Lincoln, or Preston Ware Orem. Nevertheless, the court found that, regardless of who the author was, there is no evidence that any potential author gave rights to the “Happy Birthday to You” lyrics to anyone.
The story behind authorship goes back to before 1893 when sisters Mildred Hill and Patty Hill wrote the melody and lyrics to a song entitled “Good Morning to All.” This melody is also the classic melody of “Happy Birthday to You.” In 1893, Mildred and Patty gave their rights to the manuscript containing “Good Morning” and other songs to Clayton F. Summy. That same year, Summy published the Good Morning song and copyrighted a songbook entitled Song Stories for the Kindergarten. After Mildred died, a third sister, Jessica Hill, renewed the copyright for Song Stories in 1921, acting as Mildred’s heir, but this copyright had expired in 1949.
Publication of the Happy Birthday lyrics occurred in a 1911 book entitled The Elementary Worker and His Work, but no one was credited in the book with authorship of the lyrics. The copyright on this book was registered, but to add more confusion, Alice Jacobs and Ermina Chester Lincoln were listed as the authors. In 1935, the Clayton F. Summy Company filed registrations for copyrights in two works, one of which defendants claim secured a federal copyright on the Happy Birthday lyrics. Problem is, the registration was not for the exact Happy Birthday lyrics, and the author of the new matter is Preston Ware Orem!
In 1935, Patty claimed that she wrote the lyrics to Happy Birthday. Patty never applied for copyright registration for the lyrics, and Patty, Mildred, and Jessica never contested any use by others of the lyrics to Happy Birthday.
The defendants were dealt a stunning blow. After so many years of enforcing copyright and requiring users to pay a fee to sing the lyrics, the defendants were scrambling to save the copyright. Right before trial began, the defendants settled the case agreeing to pay back the $14 million in fees they have collected over the years that were paid on the premise that they owned a valid copyright to the lyrics.
Now, when you are in a restaurant for a birthday and the staff brings out the cake, they can sing without fear of reprisal the well-known and classic lyrics to “Happy Birthday to You.”
Charles L. Simmons, Jr., Esq. is an attorney based in Baltimore, MD. He heads up the business and insurance litigation practice at the firm Gorman & Williams. Please click here to learn more about the author.