Did you know Happy Birthday was copyrighted?

This is Joseph

I did not.  Nor was I aware of a lawsuit trying to change this until quite recently.  But the actual arguments have become rather odd:

Last week, they submitted evidence that they called “a proverbial smoking gun”: a 1922 songbook containing “Good Morning and Birthday Song,” with the birthday lyrics in the third verse. While other songs in the book are given with copyright notices, “Good Morning and Birthday Song” says only that it appears through “special permission” of the Summy Company. Under the laws of the time, an authorized publication without proper copyright notice would result in forfeiture of the copyright, according to lawyers involved in the case. Furthermore, under the 1998 law, anything published before 1923 is considered part of the public domain.

Warner argued that while earlier versions of the birthday song may have been published, they were not authorized by the sisters themselves. Also, no copyright covered “Happy Birthday,” the label argues, until it was registered in 1935, so there was no copyright to be invalidated in 1922.

So a song that was extant in 1922 can be copyrighted in 1935 -- making the term of copyright last until 2030 (presuming no additional extensions).  This is 108 years past the original songbook and 95 years after the formal copyright. 

I think intellectual property protections are extremely important.  Many artists depend on these rights in order to make a living by producing works of lasting value.  My question is becoming more one of "what is the socially optimal length of a copyright".  I am suspicious that we are on the wrong side of the curve (copyright increases innovation by increasing reward but stifles it by setting up things that others cannot use without cost/permission).  In this case, the copyright term extension act didn't even incent this innovation -- all of the prior copyright holders had innovated under the previous reward levels (including this song). 

Now I don't want to go too far here in proposing solutions.  But I think a robust discussion of 50 year terms for artistic works might be of great help in this debate.  That would make things in the mid-1960's leaving copyright now, which seems like a decent run to allow compensation for innovation.