In much the same way that Eric Schlosser's Fast Food Nation tied together disparate topics through the narrative thread of the fast food business, and written in a witty style that brings to mind media pranksters like Al Franken, Ken Kesey, and Abbie Hoffman, Freedom of Expression® uses intellectual property law as the focal point to show how economic concerns are seriously eroding creativity and free speech.
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THIS GENE IS YOUR GENE
fencing off the folk and genetic commons
This gene is your gene," sang Francis Collins, playfully reworking an old Woody Guthrie song, with electric guitar in hand. "This gene is my gene," he continued, backed up by the lumbering roar of a middle-aged rock band. This was no ordinary club gig; he was singing at a post-press conference party for scientists. Collins was the man who headed up the Human Genome Project (HGP), funded by the National Institutes of Health, and he was trying to make an ethical and political point. Since the mid-1990s, Collins's HGP had raced against a private effort to map the human genome in order to make our genetic information freely accessible, not privately owned and patented by a handful of corporations. Any scientist could examine HGP's genome map for free--unlike the Celera Genomics' privately owned draft, which was published with strings attached.(1) Over the din, Collins chided his competitors in song by genetically modifying Guthrie's lyrics:
This draft is your draft, this draft is my draft,
And it's a free draft, no charge to see draft.
It's our instruction book, so come on, have a look,
This draft was made for you and me.
Dr. Francis Collins reworked "This Land Is Your Land" to argue that genetic information should be freely available to the scientific community. However, his use of that Woody Guthrie song was sadly ironic, on multiple levels. "This Land Is Your Land" is a song written by an unabashed socialist as a paean to communal property: "This land was made for you and me." Another key lyric goes,"A sign was painted 'Private Property' but on the backside it didn't say nothin'." The folk-song tradition from which Guthrie emerged valued the open borrowing of lyrics and melodies; culture was meant to be freely created and re-created in a democratic, participatory way.
If this was so, then why was Collins's use of "This Land Is Your Land" painfully ironic? Even though it was written over sixty years ago, the song is, to quote Woody Guthrie himself, still "private property." Guthrie based the melody of "This Land Is Your Land" on the Carter Family's 1928 recording "Little Darlin' Pal of Mine," which in turn was derived from a nineteenth-century gospel song, "Oh, My Loving Brother."(2) This means that, in the twenty-first century, the publishing company that owns the late Guthrie's music can earn money from a song about communal property, which was itself based on a tune that is over a century old. Far more disturbing, Guthrie's publishing company prevents musicians from releasing altered, updated lyrical versions of that song. We won't be hearing Collins's mutated "This Gene Is Your Gene" anytime soon.
What's the connection, you might be wondering, between folk music and genetic research? Although obviously very different endeavors, the practitioners of both used to value the open sharing of information (i.e., melodies or scientific data). In these communities, "texts" were often considered common property, but today this concept has been fundamentally altered by the process of privatization, that is, the belief that shared public resources—sometimes referred to by economists and social scientists as the commons—can be better managed by private industries. And in recent years, there's been a significant erosion of both the cultural commons and the genetic commons, resulting in a shrinking of the public domain. The fact that folk melodies and lyrics are now privately owned rather than shared resources is a depressing example of how our cultural commons is being fenced off. As for the genetic commons, the patenting of human and plant genes is but the furthest logical extension of privatization—taken at times to illogical lengths.
HAPPY BIRTHDAY, SCREW YOU
Like with many things relating to copyright, the story of how Time-Warner's music-publishing division came to own "Happy Birthday to You" is long, convoluted, and absurd. It's also a telling narrative about folk music—how it evolved from a living, breathing part of culture to little more than one musical genre among many, a mere section of a record store. When I first began cobbling together a legal and social history of "Happy Birthday to You," I was surprised to discover that there was virtually nothing published on the subject. Unearthing the song's genealogy was difficult because Warner-Chappell Music, then a subsidiary of TimeWarner, ignored my repeated requests for internal documents that might shed light on the song's origins. Finally, Don Biederman—an executive vice president at the company—informed me in a faxed letter that the company does in fact maintain "files concerning HBTY in various departments of our company." However, he could not provide me with any information on "Happy Birthday to You" because "we regard this information as proprietary and confidential."
Despite the "owner's" lack of cooperation, I can now tell the story—after nearly ten years of digging through journals, books, music-trade papers, old master's theses, and other dusty sources. It goes like this: Schoolteacher Mildred J. Hill and her sister Patty published the song's melody in 1893 in their book Song Stories for the Kindergarten, calling it "Good Morning to All." However, the Hill sisters didn't compose the melody all on their own. There were numerous popular nineteenth-century songs that were substantially similar, including Horace Waters's "Happy Greetings to All," published in 1858. The Hill sisters' tune is nearly identical to other songs, such as "Good Night to You All," also from 1858; "A Happy New Year to All," from 1875; and "A Happy Greeting to All," published 1885. This commonality clearly suggests a freely borrowed melody (and title, and lyrics) that had been used and reworked throughout the century. Children liked the Hill sisters' song so much that they began singing it at birthday parties, changing the words to "Happy Birthday to You" in a spontaneous form of lyrical parody that's common in folk music.(3)
It wasn't until 1935 that the Hill sisters finally got around to registering a copyright on the melody and the new birthday lyrics, claiming both as their own. The years rolled on, and so did the lawsuits, of which there were many. Then, in 1988, Birch Tree Group, Ltd., sold "Happy Birthday to You" and its other assets to Warner Communications (which begat TimeWarner, which will one day give birth to OmniCorp, or a similarly named entity). The owners of Birch Tree told the Chicago Tribune that it was too time-consuming for a smaller company to monitor the usage of "Happy Birthday to You" and that "a major music firm could better protect the copyright during its final 22 years."(4) It turns out TimeWarner hit the jackpot when the U.S. Congress added twenty more years of protection to existing copyrights. As a result, "Happy Birthday to You" won't go into the public domain until 2030.
How better to protect an investment than to aggressively police the song's use? The current owner does this job quite well, much like the song's previous stewards. One person who was very well acquainted with royalty payments and copyright law was Irving Berlin, the famous American popular-music composer. His 1934 Broadway play As Thousands Cheer included a scene where actors sang the litigation-prone birthday song. Although the lyrics of "Happy Birthday to You" had not yet been copyrighted—that wouldn't happen for another year—the Hill sisters' publishing firm nevertheless claimed that his use of the song was an infringement on the melody of "Good Morning to You." The illicit singing was in all probability very innocent, but as was the case with later lawsuits against other infringers, they didn't take pity on Berlin.
Postal Telegraph, a company that began using "Happy Birthday to You" for singing telegrams in 1938, found itself treading in copyright-infringement waters, as did Western Union. Western Union career man M. J. Rivise remembers, "From 1938 to 1942, most of our singing telegrams were birthday greetings, and 'Happy Birthday to You' was the cake-taker." Postal Telegraph apparently received permission from the American Society of Composers, Authors, and Publishers (ASCAP)--the organization that collects royalties for song-publishing companies—to use "Happy Birthday to You" without paying royalties. By 1941, ASCAP changed its mind and hiked the royalty rates. Western Union and Postal Telegraph refused to pay, commissioning birthday songs based on the public-domain melodies of "Yankee Doodle" and "Mary Had a Little Lamb." The public thought they were pretty lame, as you might imagine, so by 1950, the singing of "Happy Birthday to You" resumed, with the licensing problem sorted out. It's likely that singing telegrams were instrumental in popularizing and ritualizing the birthday song throughout the United States.(5)
Roy Harris, a twentieth-century composer of classical music, got into trouble when he used part of the song in his "Symphonic Dedication," which honored the birthday of another American composer, Howard Hanson. Variety reported, "Keeping the occasion in mind, Harris brought his composition to a climax with a modern treatment of 'Happy Birthday.' After Harris' piece had been introduced by the Boston Symphony he was compelled by the copyright owners to delete the 'Happy Birthday' passage from his score." P.D.Q. Bach, the "Weird Al" Yankovic of the classical-music world, avoided using any strains of "Happy Birthday to You" in a birthday ode to his father because he was afraid of being sued. Instead, he based it on a traditional German birthday song. Even Igor Stravinsky was slapped on the wrist when he cited a few bars of "Happy Birthday to You" in one of his symphonic fanfares (the composer reportedly assumed it was an old folk tune).(6)
Although I found little evidence to suggest that "Happy Birthday to You" was an old folk song dating back to the eighteenth century, as I had first suspected, it obviously came out of the folk-song tradition that valued borrowing and transformation. As with most folk songs, there was no single "author"; instead, the tune slowly evolved over the years with anonymous contributions by many people. The Hill sisters based "Good Morning to All" on an existing melody, and the lyrics were spontaneously generated by a bunch of five- and six-year-olds. Because the melody, first published in 1893, is now in the public domain and the lyrics weren't even written by the Hill sisters, there is little reason why the copyright to "Happy Birthday to You" should still be enforced. But that hasn't stopped the song's stewards from taking every measure to prevent others from singing it without paying royalties.
In the mid-1990s ASCAP sent letters to Girl Scouts and other summer camps, informing them that they had to purchase a performance license in order to sing certain songs. The fact that such a notice hadn't been issued before illustrates the rising level of entitlement among copyright owners by the end of the twentieth century. Under the guidelines set forth by this ASCAP letter, songs such as "This Land Is Your Land," "God Bless America," and, of course, "Happy Birthday to You" could not be sung at the summer camps without buying a license us. Copyright law defines a "public performance" as something that occurs "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." For instance, around a campfire.
The rules governing public performances are quite convoluted, like tax code, and enough to scare off anyone who wants to turn on a TV or radio outside his or her living room. For instance, "bars and restaurants that measure no more than 3,750 square feet (not including the parking lot, as long as the parking lot is used exclusively for parking purposes) can contain no more than four TVs (of no more than 55 inches diagonally) for their patrons to watch, as long as there is only one TV per room." Radio broadcasts can be played through no more than six loudspeakers, with a limit of four per room. Any more, and you're in trouble. The only exception is if the restaurant is run by "a government body or a nonprofit agricultural or horticultural organization, in the course of an annual agricultural or horticultural fair or exhibition conducted by such a body or organization." In that case, you can use more speakers.(7)
Girl Scout camp officials were told that the penalty for failing to comply with copyright laws would range from five thousand dollars and six days in jail to one hundred thousand dollars and a year in jail for every unauthorized performance. After the American Camping Association (ACA) was approached by ASCAP, the ACA sent out a newsletter warning its members of the possible risks of litigation. Some took the warning very seriously, including a Girl Scout Council director who advised future counselors at a training session to limit their repertoire exclusively to Girl Scout songs. The Houston Chronicle reported that "several cash-strapped camps stopped singing the songs" altogether.
ASCAP CEO John LoFrumento defended his organization's hardball tactics: "They buy paper, twine and glue for their crafts—they can pay for the music, too. We will sue them if necessary."(8) This climate of fear resulted in the following surreal scenario reported by the Minneapolis Star Tribune, which sounds like an episode of Sesame Street directed by David Lynch.
Something is wrong in Diablo Day Camp this year. At the 3 p.m. sing-along in a wooded canyon near Oakland, Calif., 214 Girl Scouts are learning the summer dance craze, the Macarena. Keeping time by slapping their hands across their arms and hips, they jiggle, hop and stomp. They spin, wiggle and shake. They bounce for two minutes. In silence. "Yesterday, I told them we could be sued if we played the music," explains Teesie King, camp codirector and a volunteer mom. "So they decided they'd learn it without the music." Watching the campers' mute contortions, King shakes her head. "It seems so different," she allows, "when you do the Macarena in silence."(9)
Finally, however, ASCAP backed down after the kind of public-relations smackdown that comes when you threaten to beat up Girl Scouts and take their lunch money. Soon after national wire services picked up the story, ASCAP entered into negotiations with Girl Scout leaders and hammered out guidelines that waived full royalty payments for nonprofit camps. After an agreement was reached, ASCAP released a statement claiming that it "has never sought, nor was it ever its intention, to license Girl Scouts singing around a campfire," a direct contradiction of the statements made before the public-relations debacle came to a head. Today, ASCAP charges the Scouts $1 a year, which allows the company to save face while at the same time reminding everyone that the kids are allowed to sing only because of ASCAP's good graces.(10)