Copyright Term Extension: Good Morning to You Productions v Warner/Chappell Music

Abstract

This chapter focuses on a widely reported case related to the famous folk song ‘Happy Birthday to You’. Written in the late 19th century, the tune was held in copyright by a series of amendments and statutory actions which rendered the world’s most popular song unable to fall into the public domain. This Southern District of New York case allows the chapter to ponder the ever-lengthening copyright term (most commonly life + 70) and point out the absurdity of protecting a work for over a century. Term extension and copyright complexities upset the fair balancing of interests that is taken into consideration by traditional welfare incentive theory when regulating intellectual property rights. Copyright extension and expansion lead to commodification of intellectual assets, which, at least in case of retroactive copyright extension, find no justification in welfare incentive theory and economic analysis of law. Derangement from this theoretical approach, and from proportional balancing of competing interests at stake, then, increasingly exacerbates the ‘intellectual property paradox’ by eroding access and emphasizing protection, while creating a vast array of negative externalities, including depriving the public of the ‘public domain effect’, orphan works, and chilling effects on free speech. In sum, overextended—and overexpanded—copyright protection fundamentally detaches modern copyright policy from its pristine civic purposes and anti-monopolistic sentiments.

Keywords: copyright, term, extension, Happy Birthday, public domain, enclosure, law and economics, incentive theory