“Happy Birthday to You” is likely the most well-known and most frequently sung song in the world.  For nearly a century, this brief 4-line ditty has been sung to birthday celebrants everywhere irrespective of age, status, race or creed.  It has been sung in space; it has been sung under water; it has even been mechanically manipulated into greeting cards, watches, music boxes. . . the list goes on.  As such, its omnipresence serves as but one reason for the surprise received when people discover that it is copyrighted and therefore protected by federal law!  That’s right – each time you sing “Happy Birthday to You”, you may be committing copyright infringement!

So who owns the “Happy Birthday” song?

The media conglomerate, AOL Time Warner, owns the “Happy Birthday” song, that’s who!

It all began in Kentucky in 1893 with two sisters, Mildred and Patty Hill.  Both originally nursery school and kindergarten teachers, respectively, Mildred’s career took a musical turn to that of a composer, organist, concert pianist and a musical scholar.  While working at the same school her sister had become principal of years later, the two created a simple melody known as, “Good Morning to All”, for teachers to use when welcoming students to class each day. It went like this:

Good morning to you,
Good morning to you,
Good morning dear children,
Good morning to all.

The Hill’s song became more commonly known as “Good Morning to You” and was published that same year in a songbook titled, “Song Stories for the Kindergarten”.  Thirty-one years later, a gentleman named Robert Coleman edited the songbook, replacing the sisters’ lyrics with a second verse, “Happy Birthday to You”.  In 1924, and without the sisters’ permission, these popular new lyrics began being published as a second stanza to “Good Morning to You” in a number of books and eventually, the original lyrics disappeared altogether.

Within a few short years, the catchy song had made its debut in two Broadway musicals and was even a part of Western Union’s first “singing telegram.”  The Hills, however, were not compensated for any of the song’s uses.  Subsequently, a third Hill sister, Jessica, who had administered the copyright to “Good Morning to All”, filed suit to prove that “Happy Birthday to You” was her sisters’ song only with altered lyrics.  Using the “substantial similarity” test, the Court agreed and, in 1934, the Hills were officially awarded the copyrights to the song.

So, is Grandma going to get sued for singing “Happy Birthday” to little Susie?  Most likely, no.  Royalties are due for commercial uses of the song such as playing or singing it for profit, using it in movies, television programs or in stage shows, or incorporating it into musical products such as watches and greeting cards.  Royalties are also due for the “public performance” of the song which is defined by copyright law as performances which occur “at a place open to the public, or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”  Therefore, crooning the song to family members and friends at home is fine; however, performing such a copyrighted work in a public setting requires a license.  Ever notice on some sitcoms how the crowd sings, “For He’s a Jolly Good Fellow” in lieu of “Happy Birthday to You” or; how certain restaurants have their own rendition of the “Happy Birthday” song?  Well, now you know. . . they’re not just being creative.

Don’t think they’ll catch ya?  Tell that to the 6,000+ summer camps, including the Girl Scouts, that received letters warning them that they had to pay royalties for public performances of any copyright works.  It’s sad to think of the camp counselor too frightened to sing “Puff the Magic Dragon” around a camp fire, don’t you think?  Nevertheless, publishing houses like ASCAP and BMI have field agents on payroll for this very reason.  And when pursued, settlements may be quietly reached outside of court for a few-hundred to a few-thousand dollars, but, it’s worth noting that copyright law provides for fines of up to $30,000 for each infringement and up to $150,000 if the infringement is willful, plus attorney’s fees.  Not such a happy birthday after all!

So when is this song and dance over?  Well, after acquiring the company that held the rights to “Happy Birthday to You” for a reported $25 million in 1998, current copyright law provides AOL Time Warner with rights to the song until at least 2030.  And seeing as the song is estimated to bring in about $2 million a year in royalties, it’s doubtful they’ll ignore many royalty-deserving opportunities.  Consequently, before you perform your next impromptu “Happy Birthday” rendition in public, you may want to look around to see if anyone appears to not only be entertained but, is taking notes.

The creative process that is so closely tied to the success of the entertainment industry often raises questions regarding ownership of creative works. While copyrights usually rest with the creator of a work, certain agreements can be made that transfer these rights to another party.

Generally, copyrights rest with the author or authors who originally create a work. However, the Copyright Act of 1976 contains a major exception, the “Work Made for Hire” Doctrine, which challenges the fundamental principle that copyright ownership lies with the individual who creates the work. In the case of a “Work Made for Hire,” the party for whom the work was completed is considered the author and thus holds the copyrights to the work created rather than the party who actually authored the work.

A Work Made for Hire is not, however, any work that you pay someone to create for you. In addition, it is not any work that you and a developer simply agree is a Work Made for Hire. Rather, “Work Made for Hire” is a specifically defined term in Copyright Law and applies only when certain conditions are met.

Disputes over what constitutes a “Work Made for Hire” often arise over two main issues: the distinction between an employee and a non-employee or independent contractor and whether or not the work in question qualifies as one or more of the nine categories outlined in the Copyright Act.

Section 101 of the Copyright Act defines a “work made for hire” as either:

1.  a work prepared by an employee within the scope of his or her employment; or

2.  a work by a freelancer (independent contractor) which is specially ordered or commissioned for use as a translation, as a part of a motion picture or other audiovisual work, as a contribution to a collective work, as an atlas, as a compilation, as an instructional text, as a test, as answer material for a test, or as a supplementary work such as a preface to a book, a forward or a musical arrangement, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

If the condition of category one is met, copyright ownership belongs to the employer unless an employment contract specifies that the creation of copyrightable material is not within the scope of employment. If the creation of the work falls outside the scope of employment then the employee, and not the employer, would have copyright ownership of the work.

If the conditions in category two are met, then the party hiring the freelancer would own the copyrights. If, however, these requirements are not strictly followed and the work falls outside the nine categories enumerated by the Copyright Act or a written agreement does not exist, then the freelancer would retain copyright ownership in the work.

Los Angeles intellectual property attorney, Anthony Spotora, commented, “It is the lack of a written instrument specifying the intended “Work-Made-for-Hire” relationship with independent contractors that commonly creates “Work-Made-for-Hire” copyright ownership issues. All too often, the intended owner seeks to argue that a “Work-Made-for-Hire” relationship was agreed upon, although it was stated only verbally. Subsequently, authorship of the work at issue ultimately winds up with its creator, rather that the intended owner. The second biggest misperception in freelance arrangements is that a written agreement specifying that a work is intended to be created on a “Work-Made-for-Hire” basis makes it so when, in fact, that is only the case if the work falls into one of the nine exceptions listed in Section 101 of the U.S. Copyright Act.”

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

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Selling show ideas in Hollywood is no easy feat. It not only requires the ability to create a great pitch, but also the know-how and willingness to follow established procedures for selling a show.

In order to sell a show idea, it’s necessary to create a great pitch. There are several elements that should be included in a pitch: a logline, a synopsis, and a treatment. A logline is a one-sentence description of the show. A synopsis is a brief summary of the show including information about the main characters and the theme of the show. A treatment is much like a synopsis of a show idea but is a more inclusive document which includes detailed descriptions of the characters and the show’s plot. Writing a treatment is an essential step as it is the primary medium through which show ideas are typically presented to TV producers and executives.

As an artist, you will want to determine which networks to submit your show idea to. You will want to consider the nature of your programming and whether or not it is in alignment with the types of shows each network produces. Once the appropriate networks have been identified, you should learn the submission guidelines for each. Some networks may accept unsolicited treatments and show pitches but, these are of the minority. The majority of networks require artists to have an agent or even an entertainment lawyer acting as his or her representative. Knowing and following the proper procedures for each network is an essential step in increasing an artist’s odds of having their show idea accepted.

Now, it is no secret that securing an agent can be a very challenging task. In order to overcome this challenge, artists must be willing to network; they should consider engaging a credible, proven manager and they would be wise to also consider developing a more formal, strategic plan for success with their entertainment attorney.

For artists who are able to secure an agent, he or she can help connect them with development executives – individuals who have the power to turn ideas into paychecks. When meeting with a development executive, artists must be able to accurately convey the concept of their show in a manner that is simple yet intriguing. This is where a well-written logline, synopsis, and treatment come into play. If an artist has taken the time to prepare these documents properly, the executive will be able to see the show’s potential.

Once an artist successfully pitches a show idea, it is more likely to be optioned for purchase. At this stage, an artist should utilize the expertise of their entertainment attorney to help negotiate the specific terms of the agreement. Most often, the writer will be paid an option fee up front for the company to have the exclusive rights to sell and/or produce the project with a network or third-party buyer. Once the option is exercised, the writer will then receive the negotiated purchase price and may additionally receive a small percentage of participation in the fees received by the production company for producing the show.

Navigating these negotiations can be difficult and an experienced entertainment attorney can offer artists the guidance they need to successfully sell their show ideas.

To learn more, visit https://www.spotoralaw.com/.