S&A Newsletter Summer 2008
S&A Newsletter Summer 2008

Happy Birthday We’ll Sue!

by Anthony J. Spotora, Esq.

“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.

Divorce Defined

Divorce (dì-vôrs’, -vôrs’) n.

1. The legal dissolution of a marriage.
2. A complete or radical severance of closely connected things.

In California, “divorce” is formally known as the “dissolution of marriage.” However, no matter how you define it, the result is theoretically the same and the participants can be understandably wrought with anxiety during its process. They are anxious to understand it; anxious to get through it and; anxious to get on with their lives. As such, and aside from retaining legal counsel well-versed in divorce law, it’s also important for you to remember that ‘knowledge is power’ and therefore, you may wish to familiarize yourself with the process associated to this “radical severance” and help reduce your anxiety. For example, you might want to know that a divorce can involve the court making decisions in three key areas: distribution of property, child custody, and spousal support.

Dividing Property

California is one of only nine (9)states in the U.S. that bases the distribution of property in divorce proceedings on the couple’s community property. “Community property” is defined as “any asset acquired or income earned by a married person while living with his or her spouse.”

When a couple files to dissolve their marriage, community property law defines how assets are divided between the married couple. There are generally only three instances when property is not considered community property: (1) The property was obtained prior to the marriage; (2) The property was acquired during the marriage and is a gift or an inheritance or; (3) The property is acquired during the marriage and is a personal injury settlement. Aside from these three instances, all of the couple’s assets are to be divided equally.

But not so fast – the law does not explicitly state that every asset owned by a couple is divided 50/50. Subsequently, the courts have some discretion in determining how property will ultimately be divided. For example, it is simply not feasible for the primary residence to be divided equally – it’s impossible for a house to be split in half! Instead, the presiding judge may grant one spouse the primary residence and the other spouse the family business, which may be equal in value. Also, keep in mind that community property does not solely include real estate. Other forms of community property include vehicles, stock options, pension plans, and cash, just to name a few.

The Issue of Child Custody

If you have children and are planning to divorce in California, things can get even more complicated. (cont. from e-newsletter) Amongst other matters, there is the issue of which spouse will gain custody of their child or children. As one might imagine, this can be an emotionally charged and very difficult decision to make. Subsequently, California law attempts to make the decision less painful by requiring that the couple undergo mediation before asking the court to determine who is granted custody. The couple is permitted to select a mediator or use one appointed by the court. Whether or not that mediator is ultimately able to recommend who should be granted custody varies by County. Most commonly, the mediator’s task is to assist the couple in coming to an agreement which may be presented to the court by means of a custody and visitation order.

If, however, the couple is unable to reach an agreement during mediation, the court will ultimately make a decision of child custody based on what is “in the best interest of the child.”

Alimony Considerations

Sometimes in divorce, one person is and/or ultimately will be better off, financially speaking, than the other. In cases like these that result in one spouse being left with insufficient means to pay for living expenses, California courts will often determine that alimony should be paid by the more affluent spouse. In these cases, the judge determines who pays, how much, and for how long. The judge will typically consider such issues as the less affluent spouse’s health, ability to earn income in the future, and the length of the marriage.

Let’s face it – divorce is not easy! By understanding the unique issues associated to your divorce however, you can minimize your anxiety and in turn, make the experience less intimidating and a lot easier to deal with – both mentally and emotionally.

I Think I Smell a Trademark

Millions upon millions of daily advertisements confirm a commonly known fact —> marketing plays a significant role in how consumers choose products and services. Subsequently, it only makes sense that companies laboriously find unique ways to get theses consumers to identify with their particular goods and services. And once a company has discovered its all-important identity, it is obviously important to next (timely) protect it to the greatest extent permitted by law. This is particularly true if a company experiences a considerable amount of success. Just imagine what might happen if you spent years establishing a top position in a specific market, only to have someone come along and benefit from the fruits of your labor because you had not taken measures to protect your intellectual property rights. In light of this fundamental business issue, a trademark is often a company’s best form of protection.

A trademark is basically what identifies and distinguishes a good or service from other goods and services. The U.S. Patent and Trademark Office states that, “[a] trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.” Clearly, distinctiveness is an important test of trademark law. However, the legal definition of a trademark leaves some room for interpretation, including even what can be trademarked? Can a smell, for example, be trademarked? The answer is yes!

Certain trademarks are undeniable. The Nike “Swoosh” symbol and McDonald’s Golden Arches, for example, are trademarks that people everywhere recognize. When you see these symbols, you know exactly what company they are associated with. However, how protected are less identified goods and services? Equally protected is the answer. A product or service doesn’t necessarily have to be unique to warrant a trademark.

In May of 2007, shoemaker ASICS (maker of “Vans”) fought to prevent Skechers, a competitive shoemaker, from selling certain shoes because they had a similar symbol (i.e., checkerboard pattern) on some of their footwear. (cont. from e-newsletter) Although their symbols were similar (ASICS uses a two horizontal stripes and Skechers uses a single stripe) and ASICS had 40 years of market experience with this particular design, the court ruled that the two companies’ designs were in fact distinct and that the use of the stripe did not cause consumers to be confused between the products. So, as you can see, even simple patterns can receive trademark protection and, I’m willing to bet, if you are a product of the 80’s or had children in their adolescent years during that time, you know the exact shoes that were in controversy here – simply because of an otherwise unoriginal design.

And what about sound? Isn’t sound copyrighted rather than trademarked? Sometimes. NBC radio network was granted the first audio trademark in 1929, which was a series of three chords. Today, audio trademarks are quite prevalent and few would not recognize NBC’s “chime”, now common in its television programming. Some other popular trademarked sounds include the roaring lion used by the Metro-Goldwyn-Mayer (MGM) media company, and the three chords that you hear in Intel commercials.

And colors? Well, Owens-Corning’s pink fiberglass insulation is probably the most classic example of a trademark color. This may sound arbitrary, but it was proven that the color of Owens-Corning’s insulation is tied to the identity of the product and therefore, protectable under trademark law. Other unusual registered trademarks include shapes (think of the original Coca Cola bottle), designs, and yes, even smells! A scent mark was first recognized in 1990, where a smell, described as a high impact, fresh, floral fragrance reminiscent of plumeria blossoms, applied to one company’s sewing thread.

Trademark law and its accompanying definition of what is or is not a trademark are continually being tested; but items that are distinctive to a specific company often serve to guide what is acceptable for a trademark to be registered and can, in turn, become an invaluable intellectual property right to your company.

DISCLAIMER: The information provided herein is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Some of the legal principles mentioned might be subject to exceptions and qualifications which are not necessarily noted. Furthermore, laws are subject to change and vary by jurisdiction. Please see our entire web site disclaimer, available in our menu options and incorporated herein by this reference.
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