Backing into the public domain

The last time I wrote about the lawsuit and subsequent ruling over the copyright status of Happy Birthday To You, I was trying to clarify that, in spite of media reports, the court had not declared Happy Birthday to be in the public domain; it merely said that Warner Chappell music was not able to demonstrate that they held the rights in the song. In effect, the court ruling turned Happy Birthday into one of the very few judicially-recognized orphan works.

I was a little startled, therefore, to see headlines last week saying that a settlement in the case was asking the judge to declare Happy Birthday to really be in the public domain. My first reaction was to wonder if a court can actually do that. Public domain status is not actually defined anywhere in the law; it is, rather, an absence of copyright protection. So the question that popped into my head was, if there is not sufficient evidence to determine whether or not there is copyright protection for the song, can a court just declare that any putative protection that might exist is simply void? Can the court do a kind of quitclaim on copyright for a particular work?

A little more attention to the issue reminded me that this is not, in fact, what is happening (there is another story about the settlement, with a less dramatic headline, from the New York Times, here). In fact, the Judge is being asked to approve a settlement document in whichseveral of the parties in the case explicitly deny that the song is in the public domain, but agree to release any claims they may have. They go on to state that they know of no other claimants who could assert ownership, so they believe that, with the release made by the settlement (assuming it is approved), Happy Birthday To You will be in the public domain. So the quitclaim here is from the parties, as logic suggests it must be (see sections 2.2.1 and 2.2.2 in the settlement document linked above).But these portions of the settlement also contain a promise that the parties will not object to a declaratory judgment from the court, sought by the plaintiffs, that the song will be in the public domain as of the final settlement date.

In a conversation about this, some friends and I joked that we had found a new solution to the orphan works problem just ask courts for declaratory judgments that no copyrights continue to exist in such works. A court would not do that, of course, without at least having all the known possible claimants before it and willing to relinquish their claims. And it is a risky strategy for any court, because in theory an unknown claimant could arise at a later date, and it is not clear what effect such a declaratory judgment might have on their rights, if they had evidence that supported their claim. That is unlikely in most cases, and extremely unlikely in the Happy Birthday case, where all the potential claimants seem to be at the table. Nevertheless, this result in a particular situation does not really offer a positive way forward for most orphan works.

If declaratory judgments are a poor way to address most orphan works because they attempt to adjudicate the rights of unknown parties who do not have a voice, the same might be said of the Copyright Offices extended collective licensing scheme, which seeks to collect money on behalf of those unknown rights holders. Such a plan would create a situation not unlike that which prevailed for years around Happy Birthday users paying the wrong party for the right to use a work for which the real rights holder is unknown.

It seems clear to me that the best solution to the orphan works problem in many situations, including mass digitization of distinct and distinctive collections by libraries, is fair use. The HathiTrust and Google Books cases pointed us in that direction in a way that this lawsuit over Happy Birthday cannot. Nevertheless, that case does serve as a reminder, at least to me, of the variety of resources that courts have at their disposal that might address an orphan works situation. Several common law doctrines used to preserve equity in property disputes come to mind the doctrine of abandonment, for example, or even adverse possession. Perhaps most useful would be laches, a common law doctrine that tells courts that they can refuse to hear a claim (usually in equity, whereas copyright claims are claims in law) if the party asserting its rights has slept on those rights, which is to say has unreasonably delayed or been negligent in enforcing them.

Courts have a great deal of space to deal creatively with disputes, which is one of the best things about our common law system. Various doctrines have evolved over time that could help courts preserve fairness in a dispute over some use of an orphan work, presuming that a claimant comes forward at some point. But the truth is that none of these fall-back positions are really needed in most cases because Congress gave us a statutory solution for this issue, although it is rooted in common law itself fair use.