Copyright's Crazy Couple of Weeks: Happy Birthdays, Batmobiles, and Dancing Babies, Oh My!

Between the migrant crisis in Europe, Congress' inevitable rush towards a government shutdown, and all things Pope, it's been a news-heavy couple of weeks. The world of copyright law has been equally busy; in the span of ten days, federal courts in California unveiled three headline-grabbing opinions, some of which have shaken copyright to its very core.

A Not-So-Happy Birthday for Warner Music

You know how every time you watch a TV show or movie and a character has a birthday, no one ever sings the Happy Birthday song? It's always some weird off-brand version? That's because the song was actually owned by Warner Music and if you wanted to use it, you'd need to license it or be subject to a copyright infringement suit. They must've charged a fortune too because I don't think I've ever heard the song in any filmed media whatsoever in my entire life.

Well that all changed last week when a district court in California ruled that Happy Birthday is probably not owned by Warner after all. The ruling is a fascinating read for the history alone - the song was originally written in 1893 by sisters Mildred and Patty Hill, but due to serious questions about the chain of custody over the succeeding hundred years, it's unclear who, if anyone, actually owns the song now. While the court doesn't say that Happy Birthday is now in the public domain, well it probably is.

For all you filmmakers out there, this means you don't have to force your actors to sing clearly-not-as-good alternatives to Happy Birthday anymore. Hooray for that!

Batman's Ride Is Such A Character

The day after the Happy Birthday ruling, the Ninth Circuit Court of Appeals released this opinion stating that the Batmobile - yes Batman's CAR - is a "character" worthy of copyright protection. How is that possible?

The court determined that the Batmobile has "'physical as well as conceptual qualities,' and is thus not a mere literary character," that it is “'sufficiently delineated' to be recognizable as the same character whenever it appears," and that it is “'especially distinctive' and contains unique elements of expression." 

This isn't really news except for the headline-grabbing nature of it, but it helps drive home a point that can often get forgotten in the shuffle... that your character need not be a sentient humanoid to be copyrightable. Copyright protects all manner of beasties, vehicles, and weapons as long as they are sufficiently distinct and the product of a certain minimum level of creativity. 

Dancing Baby Defeats Giant Corporation

Don't get me wrong, the opinions mentioned above are actually important, but they're small potatoes compared to the Ninth Circuit's* ruling in Lenz v. Universal Music Corp (the infamous "Dancing Baby Case"), released the week prior. 

For the sake of background, in 2007, Stephanie Lenz posted a 30-second video to Youtube of her baby grooving to a Prince song. Universal, the copyright owner at the time, sent Youtube a takedown notice  under the Digital Millennium Copyright Act (DMCA) as it infringed their copyright. Lenz claimed that her use was a fair use exception, but despite her protestations, Youtube removed the video, kicking off a lengthy court battle. 

That all ended two weeks ago when the Ninth Circuit ruled that the DMCA requires copyright holders to "consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law." In plain English, this means that before you can request an ISP (like Google, Youtube, Facebook, Instagram, etc) remove your copyrighted work that someone else used without permission, you have to ask yourself this question: "does this qualify for fair use protection?"

While the court is silent on what kind of test the copyright holder needs to apply, the ruling is a major win for the majority of us. Until this case, fair use was widely considered to be an affirmative defense, a defense you could only assert AFTER you've been sued for copyright infringement. For that reason, I'd never advocated for artists to rely on it because they would have to be in the midst of a pricey litigation in order to trot it out.

Not so, says the Ninth Circuit. As far as they're concerned, fair use isn't so much an affirmative defense as it is a type of "non-infringing use," authorized explictly by statute. In other words, fair use is not a defense, it's a right! 

I can't overstate how big a deal this is. If you want to put something online that uses the copyrighted work of another, you can do it, as long as it meets the fair use factors. In essence, it democratizes copyright in a way that's sure to piss off a lot of large copyright owners, make a lot of struggling artists happy, and keep regular Joes who just want to post videos online of their babies dancing out of the crosshairs of large-scale copyright trolls.

If fair use is now more expansive than we thought, it's no longer an afterthought, and that means everything is about to change.

*You may have noticed all these cases originate out of the Ninth Circuit. The Ninth is up there with the Second Circuit in New York that carries a lot of weight in the copyright world, which means that if any of these cases make it up to the Supreme Court, it's bound to get serious deference.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA