“Happy Birthday to You”and What’s Wrong with Intellectual Property1 Law

∷金今 選 毅白 注

“Happy Birthday to You” is perhaps one of the best known songs of the past century. It’s become an almost mandatory part of any birthday celebration, and its lyrics are instantly familiar.2. mandatory: 強制的，必須的；lyric: 歌詞；instantly: 立即地，瞬間地。While you’re likely to hear it during a backyard birthday party,though, there are plenty of places where you’re not going to hear it. You’re unlikely to hear it in a movie, for example, even if the scene in question3is a birthday party for a character where it would seem entirely natural. And, you’re not going to hear it much on the radio or television either.

The reason for all of this is because the song, written more than 100 years ago, is still under a copyright owned by a subsidiary of the massive Warner Brothers entertainment empire.4. copyright: 版權，著作權；subsidiary: 子公司，下屬公司；Warner Brothers: 華納兄弟娛樂公司，全球最大的電影和電視娛樂制作公司之一。Using the song in any commercial context means paying royalties5to the copyright owner, royalties that can often run into thousands of

3. in question: 正在討論中的，上述的。

5. royalty: 版稅，又稱版權使用費，是知識產(chǎn)權的原創(chuàng)人或版權持有人對其他使用其知識產(chǎn)權的人所收取的金錢利益。dollars depending on how the song is used. Now, a filmmaker working on a documentary about the song is going to court to try to get that copyright nulli fied.6. documentary: 紀錄片；go to court: 上法院，打官司；nullify: 使無效，作廢。

The song “Happy Birthday to You” is widely credited for7. be credited for: 認為……有某種能力或優(yōu)點。being the most performed song in the world. But one of its latest venues may be the federal courthouse in Manhattan, where the only parties may be the litigants to a new legal battle.8. venue: 發(fā)生地點，場所；Manhattan: 曼哈頓，美國紐約市的行政區(qū)之一，被認為是整個美國的經(jīng)濟和文化中心；litigant: 訴訟當事人。

The dispute stems from a lawsuit filed by a filmmaker in New York who is seeking to have the court declare the popular ditty to be in the public domain, and to block a music company from claiming it owns the copyright to the song and charging licensing fees for its use.9. 這一爭論是由一位紐約電影導演向法院提請訴訟而引起的，她希望法院能判決讓這首受人歡迎的小曲子進入公有領域，禁止某個音樂公司聲稱擁有這首歌的版權并據(jù)此征收歌曲的授權使用費。stem from:來源于，發(fā)生于；ditty: 小曲，小調；public domain:公有領域，指某些知識和發(fā)明屬于公有文化遺產(chǎn)，任何人可以不受限制地使用和加工它們；block:（政府、中央銀行等）限制或禁止；licensing fee: 授權費，使用費。

The filmmaker, Jennifer Nelson, was producing a documentary movie, tentatively10. tentatively: 暫時地，嘗試性地。titled Happy Birthday,about the song, the lawsuit said. In one proposed scene, the song was to be performed.

But to use it in the film, she was told she would have to pay $1,500 and enter into a licensing agreement with Warner/Chappell, the publishing arm11. arm: 分部，部門。of the Warner Music Group. Ms. Nelson’s company, Good Morning to You Productions12. production: （電影、戲劇等的）攝制，制作。, paid the fee and entered into the agreement,the suit says.

“Before I began my filmmaking career,” Ms. Nelson said in an e-mail forwarded13. forward: v. 轉發(fā)，轉寄。by her lawyer, “I never thought the song was owned by anyone. I thought it belonged to everyone.”

慶祝生日的必唱歌曲非《祝你生日快樂》莫屬；據(jù)《吉尼斯世界紀錄》統(tǒng)計，《祝你生日快樂》是世界上傳唱最多的英文歌曲。不過，你知道這首家喻戶曉的歌曲是有版權的嗎？自行哼唱無妨，但若用于商業(yè)用途，例如在電影中隨便使用，那就要小心吃上高額侵權罰金！

The lawsuit notes that in the late 1800s, two sisters, Mildred J. Hill and Patty Smith Hill, wrote a song with the same melody14. melody: 旋律，曲調。called “Good Morning to All.” The suit tracks that song’s evolution into the familiar birthday song and its ownership over more than a century.15. track: 循著(痕跡、線索等）探索，追蹤；evolution: 發(fā)展，成長。

But although Warner/Chappell claims ownership of “Happy Birthday to You,” the song was “just a public adaptation16. adaptation: 改編，改寫?！?of the original song, one of Ms. Nelson’s lawyers, Mark C. Rifkin, said in a phone interview.

“It’s a song created by the public, it belongs to the public, and it needs to go back to the public,” Mr. Rifkin said.

A spokesman for Warner/Chappell declined to comment on the suit.The company paid $25 million in 1988 to acquire Birchtree Ltd., a small company whose musical holdings included the birthday song.17. acquire: 取得，得到；holding: 擁有的財物。

Mr. Rifkin cited an estimate that Warner/Chappell collected approximately $2 million per year in licensing fees for the song.18. cite: 提出，舉出；estimate: （對距離、價值、數(shù)目、大小、重量、費用等的）估計，估算；approximately: 大約地，近似地。He added that the suit asks that the firm should return all the fees for the song it has collected in the past four years.

The fact that a song written when Grover Cleveland was elected to his second non-consecutive term as President is generating $2,000,000 in licensing fees some 121 years after is both an amazing fact and a testament to how perverted our copyright laws have become.19. 在格羅弗·克利夫蘭第二次被選為美國總統(tǒng)、開始其第二任非連續(xù)任期之時（1893年左右）寫的一首歌曲，在121年后的今天還能收取兩百萬美元的授權使用費，這一事實不僅令人詫異，而且也切實地證明了我們的版權法已經(jīng)扭曲到一定程度了。Grover Cleveland:格羅弗·克利夫蘭（1837—1908），美國政治家，第22任和24任美國總統(tǒng)，是美國歷史上唯一一位擔任了兩任非連續(xù)任期的總統(tǒng)；testament: 實證，證據(jù)；perverted: 墮落的，反常的。The story behind how this happened is fairly interesting:

When the Hill sisters first composed the song in 1893, it was called“Good Morning to All.” Somewhere along the line the tune evolved into the version that is currently popular.20. somewhere along the line: 在某一時刻，在某一環(huán)節(jié)；evolve: 使逐步形成，使逐漸發(fā)展。The song has traditionally been regarded as copyrighted because the lyrics appeared in a songbook in 1924 and a piano arrangement was published in 1935. As such, it would neatly fit into changes in copyright law that conferred a lengthy 95 years of protection for works created after 1923.21. 如此，它正好符合了版權法的改動——這些改動授予了1923年之后的創(chuàng)作作品一段漫長的95年版權保護期。confer: 授予，賦予。Had the songbook been published any earlier,there wouldn’t be any question as to whether a license fee was needed when, for example, Marilyn Monroe sang it to John F. Kennedy in 1962.

Now, the lawsuit says that in 1893, the Hill sisters sold and assigned their rights to a written manuscript that included the hit song to Clayton Summy in exchange for 10 percent of retail sales.22. assign: 把（權利、財產(chǎn)、頭銜等）讓與，轉讓給；manuscript: 手寫本，原稿；Clayton Summy: 一家總部在芝加哥的音樂公司。That year, “Good Morning to All” is said to have been published in a songbook titledSong Stories for the Kindergarten, and a copyright application was filed the next year. In the following years,there would be more publications of this initial song and more copyright registrations.

In their lawsuit, the Plaintiffs allege that, absent the relief that they are requesting, the copyright for the song will last until at least 2030, a full 128 years after the song was first written.23. 在訴訟中，原告?zhèn)兟暦Q，若沒有他們這一版權申述，這首歌的版權期至少要延續(xù)到2030年，距離這首歌誕生整整128年。plaintiff: 原告，起訴人；allege: 提出，宣稱；absent: 缺乏，沒有；relief: 減輕，解除。此處指的是版權的解除。This is something that Congress has done on several occasions already, so that’s certainly not beyond the realm of possibility. For example,when many of the first Disney productions were released, the existing law provided for a copyright that would last for 75 years.Had that law remained in effect, those productions, and the characters associated with them, including most of Disney’s iconic characters such as Mickey Mouse, would be considered in public domain and Disney would be unable to prevent outside parties from creating their own productions.24. in effect: 在實施中，仍具有效力；Mickey Mouse: 米老鼠，一個于1928年由迪士尼工作室創(chuàng)作的著名卡通形象。It’s also worth noting that this birthday song is not the only one where long term copyright issues have become a legal dispute recently. There are also pending lawsuits dealing with the copyright status of Sherlock Holmes and Zorro.25. pending: 審理中的，懸而未決的；Sherlock Holmes: 夏洛克·福爾摩斯，一個由19世紀末英國偵探小說家亞瑟·柯南·道爾爵士所塑造的才華橫溢的偵探角色；Zorro: 佐羅，一個由強斯頓·麥庫力所創(chuàng)造的超級英雄角色，以蒙面來隱藏自己真實的身份。

The story of “Happy Birthday to You” is, of course, just one example of how massively screwed up our Intellectual Property laws have become.26. massively: 嚴重地；screw up: 搞砸了。Thanks largely to the fact that these are laws that immensely bene fit a small segment of the population that is willing to spend a lot of money to protect its interests, we have a situation where the law favors copyright and patent holders far more than it favors the public as a whole.27. 這些（知識產(chǎn)權）法律使一小部分人—— 一小部分愿意花費萬貫家財來保護自己私利的人——極大地受益；鑒于這樣的一個事實，我們不得不面對現(xiàn)狀：法律更傾向于保護版權與專利所有者的權益，而非整體大眾的權益。segment: 部分；patent holder: 專利持有方，專利持有人。