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Week in Review

By Chris Helsel

New Evidence Emerges, and Decision Expected Soon in "Happy Birthday to You" Copyright Suit

A group of independent artists have filed a lawsuit in Los Angeles federal court challenging the copyright status of the ubiquitous birthday jingle, "Happy Birthday to You." As it currently stands, the song's copyright belongs to the Warner Music Group, which acquired it in 1988.

The song's publishing history is long and complicated. The simple version goes like this: First written in 1893 by a Kentucky kindergarten teacher and her sister as "Good Morning to All," the song evolved into a birthday tune in the early 1900s and became widespread in the decades that followed. After its use in an Irving Berlin show led to a lawsuit in 1933, the sisters' publisher, the Clayton F. Summy Company, filed the first copyright for "Happy Birthday to You" in 1935.

Today, the song is believed to earn around $2 million in licensing income annually, mostly from its use in film and television.

The plaintiffs in the current suit seek a judicial order declaring the song to be part of the public domain, and for Warner to return licensing fees dating to at least 2009. Their claim appears to have been strengthened last week, as lawyers submitted evidence they called "a proverbial smoking gun."

The new evidence consists of a 1922 songbook containing "Good Morning and Birthday Song," which included the familiar "Happy Birthday to You" lyrics in the third verse. Crucially, they say, is the fact that while other songs in the book are given copyright notices, "Good Morning and Birthday Song" lacks any copyright information and notes only that it appears through "special permission" of the Summy Company. Under the laws of the time, an authorized publication without copyright notice constituted a forfeiture of an existing copyright.

The obvious question now concerns when the song's copyright status attached. Warner contends that the 1922 publication was not actually authorized by the sisters (contrary to songbook's notation) and that the 1935 Summy filing constituted the first copyright of the song. Further complicating matters is the Sonny Bono Copyright Term Extension Act, which holds that anything published prior to 1923 is considered part of the public domain.

Both sides have moved for summary judgment, and Judge George H. King of the U.S. District Court for the Central District of California is expected to rule on those motions in the next few weeks. Should he deny summary judgment, the case will proceed to an unorthodox trial in which all principal witnesses are long dead.


American 800-meter Runner Embroiled in Sponsorship Dispute, Faces Ban From Competition

Runner Nick Symmonds, winner of six United States 800-meter outdoor national championships, may not be competing for his country at this month's world track and field championships in Beijing - for reasons completely unrelated to his ability on the track.

Under U.S.A. Track & Field (USATF) rules, athletes competing for the U.S. in international competition must wear apparel made by the team's official sponsor, Nike. Mr. Symmonds, who is sponsored by the apparel company Brooks, believes that the document containing this requirement is vague and overreaching, and has refused to sign it. He not sign today, when the American final roster was to be submitted, and it likely that he will not be on the team. "Responding by email after the deadline had passed, USATF spokeswoman Jill Geer wrote: 'We will announce the team tomorrow. We will make any statement necessary at that time.'"

At issue is exactly when and where American track athletes are required to wear Nike apparel. Under USATF rules, athletes must agree to wear only Nike or non-branded apparel at "official functions." The document specifically lists competitions, awards ceremonies, news conferences, as well as "other official team functions", which are not described.

USATF officials counter that conflicts between individual athletes' personal sponsorships and those of their teams or leagues are common. As an example, said a federation spokesperson, "Steph Curry is with Under Armour, and LeBron James is with Nike. Both men played in Adidas uniforms in the N.B.A. finals last season."

The USATF also noted that it spends $2.5 million yearly on televised meets in which athletes are allowed to wear whatever they want during competitions and news conferences so that they can get the most from their endorsement potential. "The only time we limit what athletes can wear is when they are representing the United States," said the spokesperson. Nike recently signed an extension to sponsor USATF through 2040 for approximately $20 million per year.

Yet Mr. Symmonds believes that the federation's rules are overly restrictive, and appears ready to take his battle to court. USATF "has confiscated advertising space that I own," he said. According to the runner, the federation "frequently uses bullying tactics to force athletes to do what they want, even when they have no legal right to do that...I deserve the right to know what an official team function is. They haven't defined that yet." When asked what he will do if he is stripped of his place in the world championships, he said, "I'll probably have to talk to a lawyer." As of tonight, he said: "I'm going to go sit by a lake for a little bit."


Spanish Court Rules that Picasso Painting is a "National Treasure," Cannot be Sold Abroad

A Spanish appeals court ruled earlier this year that Pablo Picasso's 1906 painting, "Head of a Young Woman," is a "national treasure" and therefore cannot be removed from the country by its owner. The painting, which is valued at approximately 26 million euros, is owned by Jaime Botín, a member of a wealthy Spanish family that controls Banco Santander. Mr. Botín purchased the work in 1977 and keeps it on board a yacht docked on the country's Mediterranean coast.

In late July, the yacht appeared docked in Corsica. Last Friday, French customs officials boarded and seized the painting. The officials had apparently been tipped off by Spanish authorities, who accused Mr. Botín, 79, of attempting to improperly relocate the work to Switzerland for sale, in violation of a court ruling invoking a Spanish law protecting "national treasures" from export.

Mr. Botín's attorney, Rafael Mateu de Ros, contends that it would be impossible for his client to unlawfully export the painting from Spain, as it was purchased abroad and never actually entered the country. The yacht on which it was housed, he says, is registered in the United Kingdom. "For years now, the picture has been inside a British vessel, which is foreign territory for all who that may concern, even when it is moored in Spanish ports," said Mr. de Ros. Furthermore, Mr. Botín argues that the work is officially owned by a Panamanian company in which he is registered as a major shareholder.

In addition to blocking the painting's export, the Spanish government could ultimately take ownership of the Picasso masterpiece if it finds that Mr. Botín violated its cultural protection laws against illicit art trafficking.

Spain's historic heritage department, which is overseen by the nation's Culture Ministry, originally declared the painting a "national treasure" in 2013, declaring that no similar work remained in Spanish territory. At that time, the ministry denied Mr. Botín permission to sell the painting at auction in London.

For now, the painting remains in the hands of the French authorities, and Mr. Botín has formally appealed his case to Spain's Supreme Court. The timetable for that court's decision is unknown, but Spanish authorities seem confident that the work will be returned. At a budget presentation this week, the country's culture minister, Íñigo Méndez de Vigo, said his office is working with the Guardia Civil (Spanish national police) to recover the painting. Said Mr. de Vigo, "I am pleased that a work of this quality -- declared ineligible for export -- is returning to Spain."


Under Brazilian Law, TV Executive Indicted in FIFA Corruption Case is Safe From Extradition

Argentinian-Polish-Brazilian broadcasting executive Jose Margulies was one of the 14 individuals indicted by United States authorities in May for their roles in the ongoing FIFA corruption scandal. Unlike his counterparts, however, Mr. Margulies has not yet been arrested, and is in fact living happily in São Paolo.

Mr. Margulies, 75, stands accused of leveraging his position as a television executive to help arrange illegal payments (read: bribes) between marketing executives and soccer officials. He was indicted on four counts of racketeering conspiracy, money laundering conspiracy and wire fraud conspiracy.

However, Brazilian law forbids the extradition of its citizens, except in certain circumstances not applicable here. As such, Mr. Margulies is living free in his adopted home country.

According to Interpol, Mr. Margulies faces arrest in any other country should he ever leave Brazil. Federal Bureau of Investigation spokeswoman Kelly Langmesser confirmed this week that Mr. Margulies is still a "wanted fugitive."

While refusing to extradite Mr. Margulies, Brazilian authorities have begun their own investigation into the U.S.'s allegations against the executive. According to his attorney, that investigation is expected to take at least a year, during which time Mr. Margulies will remain free.

Perhaps the only method by which the United States might secure extradition would be under the Palermo convention, an international agreement relating to organized crime and corruption. Under the convention, Brazilian authorities could agree to send Mr. Margulies to the U.S. temporarily to testify, with the requirement that he be returned to Brazil immediately afterward.


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This page contains a single entry from the blog posted on August 9, 2015 6:16 PM.

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