Why Can't My Waiter Sing Happy Birthday: The Chilling Effect of Corporate Copyright Control

50 Pages Posted: 2 Feb 2016 Last revised: 13 Apr 2016

See all articles by Rachel Smith

Rachel Smith

University of Mississippi, School of Law, Students

Date Written: January 30, 2016


In 2015, a lawsuit surrounding the copyright protection of the classic tune “Happy Birthday to You” resulted in the court concluding that a corporation who asserted ownership interest in the song never had a valid copyright to claim. For decades, the song considered to be an American folklore was no longer restricted by a corporation controlling its dissemination. This is not an isolated incident, but instead a norm in copyright. Therefore, a change must be made in copyright protection in order to justify the limited monopoly, as the current system does not promote progress of the useful arts.

Copyright — through the lobbying of companies and special interest groups — operates now as a profit incentive to businesses looking to buy creative works and police any use or reference of their purchased art. These companies support a permission culture in copyright where artists should have to gain their approval before accessing a work, regardless of their intended purpose.

Throughout this Article, the effect of corporate copyright control on free speech and the public domain is heavily dissected. By analyzing the dissenting opinions of Eldred v. Ashcroft, this Article argues copyright was intended to promote the progress of arts, not stifle creativity to provide a monetary reward. Then, the proposed solution to corporate copyright control calls for lobbying action by creators so that the termination interest can be exercised sooner. Additionally, copyright term lengths should automatically change upon the transfer of ownership from the author to anyone other than his or her heirs. As a result of the proposed solutions, companies will be deterred from purchasing and policing the use of popular works, which will lapse into the public domain sooner. Therefore, copyright will serve to incentivize the person who created the work, rather than as a profit point for companies.

Keywords: Copyright, Intellectual Property, Free Speech, Public Domain, First Amendment, Expression, Art, Happy Birthday to You, Corporations, Creators

Suggested Citation

Smith, Rachel, Why Can't My Waiter Sing Happy Birthday: The Chilling Effect of Corporate Copyright Control (January 30, 2016). 56 IDEA 399. Available at SSRN: https://ssrn.com/abstract=2725203 or http://dx.doi.org/10.2139/ssrn.2725203

Rachel Smith (Contact Author)

University of Mississippi, School of Law, Students ( email )

MS 38677
United States

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