Can I pay you not to sing?

You heard it sung many times while enjoying your sumptuous meal. Suddenly, there is a bad taste in your mouth when the clapping clings and tambourine clangs. Unless, of course, it is your natal day or someone in your table. Then you will sing along and even take pictures. Just hope I am not in the next table.

The hot news in the world of copyright is the push for the elimination of the copyright protection of the song “Happy Birthday”. While the lawsuit in the U.S. Federal Court System is quite complicated to read, I will try to simplify it.

How long is copyright protection?

According to Sec. 213 of the IP Code of the Philippines, any work that is copyrighted is protected for 50 years after the death of the CREATOR. Seems long, eh? Well, if you want to know the reason why the lawmakers made it that way, take my class.

When was Happy Birthday made?

According to the complaint, the song was originally composed as “Good Morning to All” by the school teacher sisters Patty and Mildred Smith BACK in the 19^th century. Eventually, Warner/Chappell got ownership of the rights to the song and has been collecting royalties every year (pun intended).

How much does one have to pay?

If you have a private birthday party (shame on you for not inviting me), you can sing it all you want up until the neighbors start complaining.  The law allows private performances within a circle of family and friends. But if you want it in a movie or a television show, expect to pay between $5,000 and $30,000. Warner collects about $2 Million per year from that song alone. Birthday parties are part of the employee benefits package at Warner/Chappell (just kidding).

Expiration Date

Warner/Chappell claims that the copyright to “Happy Birthday” will last until 2030. There is a particular provision under US law that allows a 95 year protection of songs. If you calculated correctly, that means that the song was “copyrighted” in 1935. Warner/Chappell is claiming that the Smith sisters didn’t actually write the song. What Warner claims as theirs is a piano arrangement of the tune (but not the lyrics) copyrighted in 1935. Mildred Hill died in 1916 Patty Smith Hill died in 1946. Under US law, any songs created ONLY after 1923 have that near century shield. This is a dilemma that the US courts must address.

Conclusion

If this lawsuit does get dismissed, we will soon have birthday song police roaming around every Saturday and Sunday afternoon looking for evidence of cake, candles and balloons. Well, not really. It is never going to happen. Warner/Chappell will not after small things like that. I believe that law abiding movie and TV producers are paying the former well enough so that there will be no Birthday Police Academy Movies.

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The material in this online newsletter has been drafted and edited by Atty. Roderick Vera and is for informational purposes only. The material above does not constitute nor become legal advice. Please consult with an attorney for legal advice before relying on any information found on this newsletter. For any questions, inquiries or comments, please see the contact information above.

Intellectual Property Law Updates May 28, 2012

Trademark Law

Latest jurisprudence

Fredco Manufacturing Corp. vs. Harvard University, Cambridge, G.R. No. 185917, June 1, 2011

Harvard Jeans Case

• Even prior registered local trademarks under R.A. 166 (old trademark law), which allowed “squatting” Philippine trademarks (Shangri-La case) to prevail over international trademarks can now be cancelled.
• Trademarks registered under R.A. 166 shall be deemed to have been registered under R.A. 8293 (IP Code of 1998). This means that all the requisites and/or provisions not present in R.A. 166 but present in R.A. 8293 can be invoked for cancellation.
• Even international trademarks not registered in the Philippines have protection under the Paris Convention (IP Treaty)

Latest News from the Web

This is it! And you thought this would never happen

Competing porn sites are now suing for infringement. I dare not say anymore. Site for online article HERE.

 The “G’s” have it.

Gucci has won a trademark infringement case over Guess. There are not enough “Gs” to share in this world. Site for online article HERE.

Downloading illegally or “file sharing” is still BAD!

The United States Supreme Court refused to hear an appeal by a former Boston University student (represented by a Harvard Law Professor) who is set to pay $675,000 (30 songs @$22.5K each) in damages for using Kazaa. Let this be a lesson to all of you. Site for online article HERE.

Google can keep their Android

Google partially won against Oracle after the later sued the former on patent infringement. Oracle claims that the Andriod system is based on the Java technology which was bought by Oracle. 300 million smartphones can’t be wrong. Site for online article HERE.

TV really isn’t free

An online service that sends FREE tv signal to subscribers over the internet is being sued for ILLEGAL FREE PUBLIC PERFORMANCE. Yes, I didn’t know that ILLEGAL and FREE can be used in the same sentence. Site for online article HERE.

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The material in this online newsletter has been drafted and edited by Atty. Roderick Vera for informational purposes only and does not constitute nor become legal advice. Please consult with an attorney for legal advice before relying on any information found on this newsletter. For any questions, inquiries or comments, please see the contact information above.
 

Why you should NOT buy pirated CDs or DVDs

It may seem so easy for any of us to do such a thing. But when you realize that it is more expensive to buy a hotdog at the place of honeyed burgers than it is buy a silver disc of pirated material, it becomes an easier choice. But what is paramount is that buying pirated material is a crime. Whether it is easy to do or cheap to buy, the act is still criminal.

Taking aside the criminal aspect, the real reason for not buying pirated material is the economic incentive that is lost. The reason why our government affords copyright protection is to provide a security measure for a return on investment. All of us want to earn money. Most of us are earning our daily bread by doing things we don’t love. But those who write the music and make the movies are doing exactly what they love to do.

Making music and movies takes money. These artists, if you are willing to call them that, put up money up front for the costs of making their work. One album could cost easily six figures to make and that just the recording studio. Movies are a whole other ball game. It is not uncommon for an action movie from a major U.S. studio to run a figure of more than 100 million.

The only way for them to see that money come back is for us, the economic power that we are, to buy their products legitimately. When you buy pirated material, you give money to scrupulous men who don’t know how to make movies or write music. The wrong people are making money.

If the money comes back to the artists, they will in turn make more music and more movies for us to enjoy. Come on, we all love to hear our music and see our movies. But when there are no more new ones, we will be stuck with watching Conan, the Barbarian over and over again.

You might argue that these creative minds are making too much money such as J.K. Rowling who is now a billionaire. But that argument doesn’t hold water when you buy your cell phone load. Do you see anyone complaining when the Ayala’s are raking it in or when MVP is upping his monthly per diem.

If we had a choice, we wouldn’t want to buy fake burgers or fake sodas. Why should you settle for less when it comes to music or movies?

Apple contributing to music piracy

Indirectly, Apple is contributing to music piracy in the Philippines. How so? Read on.

First of all, I must applaud Apple for creating one of the world’s greatest innovations. The design and simplicity of the iPod makes it easy for everyone from 4 to 80 to use. But innovativeness in their proprietary thinking has led to selfishness which has led to music piracy. Did I make it more confusing? Bear with me please.

As every iPod owner will know, the only way to load songs to the little white machine is through a music library in iTunes. Well, ok, I forgot the little white cable. The capacity of these iPods range from the mundane 1GB to the monstrous 160GB. It’s not just music, you can now load pictures and full length movies. Again, the latter has to be in the iPod proprietary format. Am I boring you now, don’t worry, the next paragraph is the core of the article.

Where do the owners of these iPods get their songs and movies? From itunes.com? Think again. There is no iTunes for the Philippines! That means that no one with a Philippine based credit card can purchase a song for 42 pesos (99 cents). Most people (and you know who you are!) will load their iPods from tiangge type establishments for 5 pesos song and 100 pesos per movie. If they won’t load, they will download the songs they want through utorrent or other illegal means. If not that way, they will buy a 30 peso (is it still 30?) pirated CD and rip it to their iTunes. One little sweet revenge is that they will have to type the song info one by one so that the song title will register in their iPod.

I don’t want to brag, but because of my legal practice, I stick to a non-pirated mode of loading iPods. My newly tuned philosophy has redounded to my 12 year son. He refuses to log on to the downloading websites despite the fact that we have had DSL broadband for 2 years now. Secondly, we are at an impasse on how to convert original DVDs to the iPod movie format (Any tips?). I had to thicken my face and ask a friend of mine (actually client) to buy $50 worth of iTunes cards in the U.S. My son still has $35 balance as of this writing.

With so many iPods out there, where are all the songs coming from? When was the last time you bought an original music CD? I am sure there are only a handful of us who still do. iPod has thickened both sides of the fence. Their popularity has renewed interest in music. The more music is out there, the more business for otolaryngologists (ear doctors). Seriously though, if the source for iPods is scarce, nay, non-existent in this country, a resort to unsavory means is inevitable.

But we should not blame the buyers of iPods. I dare say that Apple should make iTunes accessible to Filipinos. I am sure that after reading this blog, I would have converted a four year old and an 80 year old to stop pirating music. If the source of our music is easily reached and affordable, we will have more new songs to appreciate (just no more NKOTB, please.) More new songs, more new iPods.

So, Apple, make iTunes for the Philippines possible!