Weird Things People Have Tried to Copyright
by Anthony Aycock
I thank James Madison of Virginia and Charles C. Pinckney of South Carolina for the fact that I own the words you’re reading now. In 1787, as the Constitutional Convention—the meeting of the group tasked with creating the framework for the new United States of America—was in full swing, these gentlemen made the proposals that were distilled into the Copyright Clause of the Constitution: “The Congress shall have Power ... to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
From this sentence flows U.S. intellectual property laws. These laws govern the creation and use of books, articles, plays, poems, drawings, sculpture, movies, music, choreography, inventions, architecture, photographs, computer software, and any other “original” products “fixed in a tangible medium of expression.” The first law, the Copyright Act of 1790, granted copyright for a brief time: 14 years, plus one renewal of 14 more. Revisions and amendments since then have bloated protections to the life of the author plus 70 years—more than four times the original length.
Most people agree that copyright protection is a good thing—but a good thing with occasional head-scratching results. The following are some unusual creations that lawmakers have struggled to regulate.
‘Happy Birthday to You’
Oct. 10, 1978: I was turning 5, a most exciting age. Photos of that day depict me in the customary 1970s attire of orange flared pants, a striped pullover, and Star Wars sneakers. There’s my mom, a Karen Carpenter lookalike. I don’t know how many kids were at the party. I don’t know what food I ate (probably devil’s food cake without frosting, which hurts my teeth now). I don’t know what games we played. (No Xbox? Booooring!) But I remember that moment when the kids gathered around. There was a hush like the silence before the national anthem. Then a second later, 2 dozen (yeah, right; it was probably three or four) kindergarten voices raised the carport in a chorus of “Happy Birthday to You.”
It’s strange to think that we were breaking the law. Every last roller-skating, Happy Days-watching, pet-rock-owning one of us. How? Our singing could have been considered a public performance. And “whether you render the performance by a live band, by a CD, by a DJ, or by your smartphone,” it “requires a public performance license” (tinyurl.com/y9holcom).
“Happy Birthday” has its origins in an 1893 song by two teachers, Patty and Mildred Hill, called “Good Morning to All”:
Good morning to you,
Good morning to you,
Good morning dear children
Good morning to all.
The Hill sisters were accomplished songwriters, and in 1935, their publisher, Chicago’s Clayton Summy Co., copyrighted a new song: the melody of “Good Morning to All” with the now-famous “Happy Birthday” lyrics. Warner Music Group bought the rights in 1988 and began collecting about $2 million a year licensing the song for use in movies, public performances, and other venues (tinyurl.com/y8s8hppz).
Does it seem right to charge for a song that we are taught as children, is only four lines long, and is sung thousands of times a day around the English-speaking world? Besides, the third line changes according to the birthday person’s name. Owing to these and other concerns, and no doubt stinging from the cost of the licensing fees, a film company filed a class-action suit against Warner/Chappell Music in 2013, claiming it didn’t own a valid copyright.
“There are a number of weaknesses in the copyright of ‘Happy Birthday,’” writes Robert Brauneis, a consultant in the case. “The renewal registrations for the song, which under then-current copyright law were necessary to maintain copyright after 1962, only cover certain piano arrangements, and do not cover the basic combination of words and music” (tinyurl.com/y85fc9yf). A federal judge agreed, ruling that the song was in the public domain.
As for the song’s unofficial variant (“Happy birthday to you / You live in a zoo …”), I remember seeing it in previews for the movie Madagascar, which means Disney doesn’t own it. Thank goodness.
All They Want to Do Is (Copyright Their) Dance
Quick question: What do Terrence Ferguson, Russell Horning, and Alfonso Ribeiro have in common? You don’t know? Oh, sorry. I should have used their familiar names. What do rapper 2 Milly, Instagram icon Backpack Kid, and Carlton from The Fresh Prince of Bel-Air have in common? The answer is that all three have sued Epic Games, creator of the kajillion-dollar video game Fortnite. And they have all sued for the same reason: The game allegedly ripped off their dance moves.
In Fortnite, players create and customize their own in-game characters. One way to do this is through “emotes,” or actions that your character can perform, some of which are victory dances. The dances have ho-hum names such as Swipe It, Floss, and Fresh; you can see them, plus a few others, being performed at https://bestfortnitesettings.com/best-fortnite-dances-emotes. Notice anything familiar? They are, move for move, dances made famous by 2 Milly, Backpack Kid, and Ribeiro as Carlton.
Most dances—the jitterbug, Charleston, Lindy Hop, hustle, tango, waltz, lambada, robot, worm—aren’t identified with a single artist. The three plaintiffs contend the opposite: Their dances are uniquely theirs. Ribeiro, for instance, claimed that Epic Games exploited his “protected creative expression and likeness and celebrity without his consent or authorization.” According to his suit, he created the Carlton dance in 1991, and all these years later, it “remains distinctive, immediately recognizable, and inextricably linked to Ribeiro’s identity, celebrity, and likeness” (tinyurl.com/ycygbbfv). [Ribeiro dropped his suit as this issue went to press. —Ed.]
Copyright exists the minute a person commits something—a story, poem, drawing, or whatever—to paper, but that common-law approach doesn’t protect creators from thievery. To be protected, creators have to register their works with the U.S. Copyright Office. The office has registered works of choreography—i.e., written representations of dance moves—but never the moves themselves, making a copyright infringement argument a legal long shot.
Another problem is that dance, more than most art forms, is derivative, and it can be hard to establish the actual owner. Horning began his climb to fame when he posted a video of his dance, called the floss, in 2016. Rihanna then re-posted one of his videos, which led to Horning doing the dance on Saturday Night Live alongside Katy Perry. Videos have surfaced, however, of people doing similar dances as far back as 2011 (tinyurl.com/yc3mvjwa). As for the Carlton dance, Ribeiro performed it as part of his portrayal of a character on a television show. If anyone had a claim against Epic Games, wouldn’t it be NBC, which owns the rights to Fresh Prince, and not Ribeiro himself?
Legal experts seem to agree that, if the court accepts the argument that dance moves are part of their creators’ identity, whether copyrighted or not, then the plaintiffs may win (tinyurl .com/ybez3zmb). Win or lose, one thing is clear: This area of law won’t be the same old song and dance.
The Sound of License
If a picture is worth a thousand words, then what is one word worth? That was the question when Dave Hester, star of A&E’s Storage Wars, sued rapper Trey Songz in 2011.
At issue was a single word: “yup.” It’s Hester’s frequent utterance on the show, written as “YUUUP!” on his clothing and truck. It’s also a signature sound for Songz, one he has used at his concerts and on merchandise for sale on his website, since at least 2009. Storage Wars premiered in 2010, so it would seem that Songz can claim the earlier usage. However, the rapper never trademarked the word. Hester did register for a trademark, and he later sued Songz to stop him from using the word. Songz, naturally, countersued.
If you listen to Hester, he clearly says “Yeeep,” which rhymes with “pep,” not “Yuuup,” which rhymes with “pup.” This should have negated the fracas, right? In any event, the two yuuupies settled their dispute in 2012, just in time for Hester to be fired from Storage Wars and sue—and win—for wrongful termination (tinyurl.com/y8mdqrcl).
Most people have little trouble believing that slogans or catchphrases such as “Super Bowl” and “Let’s get ready to rumble!” are trademarked because they are groups of words. Hester’s expression is more sound than speech, but sounds, or “sound marks,” can be protected too. Unlike copyright, trademark rights stem from the actual use of a distinctive mark in commerce (tiny url.com/y9y62cr8). In other words, if you don’t register it, you don’t own it. This was the key to Hester’s argument against Songz.
Sounds don’t have to be words to be trademark-worthy. Tarzan’s yell, Darth Vader’s breathing, the Pillsbury Doughboy’s giggle, and Homer Simpson’s “D’oh!” are all protected. Nor do they have to be human utterances. MGM’s lion roar, 20th Century Fox’s cat meow, AFLAC’s duck quack, the 60 Minutes ticking stopwatch, and ESPN’s “DA-da-DA, DA-da-DA” are likewise protected. You can hear more examples at the U.S. Patent and Trademark Office website (uspto.gov/trademark/soundmarks/trademark-sound-mark-examples). Nintendo hopes to join in by trademarking the Mario coin chime more than 30 years after the original Super Mario Bros. game was released (tinyurl.com/y6wqeaoh).
Nintendo will need better luck than Harley-Davidson, which filed an application in 1994 to protect the rumble of its idling V-twin motorcycle engine. There was immediate opposition to this move. Other manufacturers argued that the sound is common to all V-twin motorcycle engines and that Harley-Davidson’s were nothing special. Finally, after years of court battles, Harley-Davidson dropped its efforts in 2000 (articles.latimes.com/2000/jun/21/business/fi-43145).
Protection for Creators
As a new nation, fresh off the defeat of the English monarchy and eager to make its name in the world, the U.S. in 1787 needed to attract, and keep, top minds. The Founding Fathers realized that an important way to do that was to protect writers, artists, and inventors from intellectual piracy. Creators gonna create, but for those who wanted to make money while doing so, America had them covered.
More than 200 years later, copyright and trademark laws are offering that protection on a variety of things that James Madison and Charles Pinckney never imagined. Catchphrases, dances, computerized sounds—what’s next? In the (copyrighted) words of Will Smith, “On your mark ready set let’s go.”