Re: Happy Birthday!

David Stover <ds[_at_]ald.lib.co.us> wrote:
>
> And one more question regarding the Happy Birthday copyright.
> Practically and also legally if an owner does not pursue their copyright
> claim over a period of years, would it not be an analogous situation to
> a trademark drifting into the lexicon as a common term rather than a
> protected mark?

While laches, waiver and acquiescence may be DEFENSES to a claim of copyright infringement, a party's failure to diligently police and protect its copyright does not, in and of itself, extinguish the copyright or force the work into the public domain.

Also, a trademark does not cease to be protected if it becomes a "common term", but only if it becomes THE GENERIC term for the product or service with which it is associated. Loss of trademark rights owing to genericness does not easily analogize to the dubious proposition that, because "Happy Birthday" is so widely used and sung, it should lose its copyright. Indeed, mass popularity is exactly what gives copyrights value.

> Rather than make us all feel like criminals for violating everyones
> right to ownership, I would like to see the "fair use" definition
> broadened to say essentially we are all innocent of criminally copying
> until it can be proven that those four Texaco conditions are proven with
> very heavy weight given to proving the loss of someones revenue stream
> directly resulting from the violation.

The Texaco factors apply only in the Second Circuit, and, as I read the case, are expressly tailored to situations involving institutional photocopying of copyrighted material. I do not think the Texaco factors would adapt very easily to other copyright infringement situations, such as plagiarism of a novel or song, or the downloading of a pirated computer game.

Bob Cumbow
<cumbr[_at_]perkinscoie.com> Received on Fri Sep 19 1997 - 05:19:32 GMT