For the majority of open science outputs, the most relevant legal instrument is copyright. Even though the specifics of copyright law vary between countries, bear in mind the following general concepts:

  1. Copyright automatically applies as soon as you express a creative work and “fix” it in any medium. This is very broadly defined and could be a scientific dataset, academic paper, or seemingly trivial expressions like social media posts, emails, and even scribbles on a napkin.
  2. The author of a work is usually the copyright holder, but copyright can be transferred to any other person or organisation.
  3. The copyright holder has the exclusive privilege of dictating the terms of how their copyrighted work can or cannot be used by others.

These concepts can feel abstract, so let us look at two famous cases to help understand them.

Happy birthday

The Happy Birthday song is considered one of the most popular songs in the world and has been translated into at least 18 languages [1]. You might have heard it being sung during one of your, or someone else’s, birthday. In case you are not familiar with the Happy Birthday song, this is its melody:

Happy Birthday instrumental arrangement by Eirik1231 from Wikimedia Commons, dedicated to the public domain

What is less known about this song is its complicated relationship with copyright law.

The first known publication of Happy Birthday’s melody and words dates to 1912 in the United States. The copyright to this song was held by The Summy Company who cited Preston Ware Orem and R. R. Forman as the authors. In 1988, Warner/Chappel Music bought the copyright to Happy Birthday. Observe that this is an example where the author is not the copyright holder of a work, which is often true in the music industry. We can also see the transfer of copyright from one entity to another, in this case between two music publishers. Even in science, some academic journals require a paper’s author to transfer their copyright to the publisher.

As the copyright holder to Happy Birthday, The Summy Company, and later Warner/Chappel Music, held exclusive control over what other people can do with this song. Technically, it was a criminal offence for you to sing this song in public (a “public performance”) without express permission from the music company! When Warner/Chappel Music gave someone permission to perform Happy Birthday, that is called a “license”. Simply put, a license is the set of permissions and conditions a copyright holder gives to another person to share or make use of their work. To get a license from Warner/Chappel Music to perform Happy Birthday, you had to pay at least $700 USD for a single “use” of the song. That is why you rarely see Happy Birthday performed in film or television. To save money and paperwork, script writers simply found some other way for characters to celebrate a birthday.

Throughout the 20th century, copyright law was revised many times in the United States, and the complex history of Happy Birthday’s copyright transfers caused much legal dispute. In 2016, it was finally determined that the copyright to the Happy Birthday song had expired in the United States, more than a century after its first known publication. The copyright to this song expired in the European Union in 2017. You can now confidently perform this song without permission or fear of imprisonment because it is finally in the public domain (at least in the US and EU).

Dancing baby

Dancing babies don’t usually get people into trouble. But for Stephanie Lenz, sharing a 29-second video of her toddler led to a decade-long legal dispute now known as the “Dancing Baby” case [2]. Soon after posting this video to YouTube in 2007, Stephanie received a copyright complaint from Universal Music. Apparently, her child was dancing to a song called “Let’s Go Crazy” which happened to be playing in the background. By allegedly remixing the song into the video, Stephanie was accused of committing copyright infringement. In the worst case, she could be sent to jail.

In the United States and several other jurisdictions, there is a legal right called “fair use” (or “fair dealing” in some countries) which allows the use of copyrighted works without a license. Fair use is possible under a narrow set of conditions, such as in certain educational settings, highly “transformational” uses, parody or critique, or relatively mundane situations like Stephanie’s dancing baby.

Unfortunately, what counts as fair use is highly subjective, and it varies greatly between different jurisdictions. In Stephanie’s case, it took more than 10 years of costly litigation to establish her fuzzy 29-second dancing baby video as fair use, and that it did not cause major damages to an international music conglomerate. She can finally share this video of her son, who is now attending high school.

If you can spare 29 seconds, take a look at Stephanie’s original video below (can you recognise the song playing in the background?).

We believe the inclusion of this video here is fair use. But if Stephanie sends us a copyright complaint, we will remove it. We can’t afford the costs of litigation!

Video of a dancing baby by Stephanie Lenz from YouTube and archived at the Internet Archive, fair use

References

1. Brauneis, R., 2010. Copyright and the world’s most popular song. Journal of the Copyright Society of the U.S.A., GWU Legal Studies Research Paper No. 392. https://doi.org/10.2139/ssrn.1111624

2. Electronic Frontier Foundation, 2011. Lenz v. Universal [WWW Document]. Electronic Frontier Foundation. URL https://www.eff.org/cases/lenz-v-universal

Last modified: Wednesday, 20 October 2021, 3:32 PM