I was in San Francisco in early June, and the Grabhorn Institute invited me to give a short talk in their gallery about type history and the Tiny Type Museum & Time Capsule. The institute preserves the practical history of type casting and fine-art printing by perpetuating it, fulfilling orders from letterpress printers and producing new books, while running an apprenticeship program, regular tours, and inviting speakers (like me!).
I've posted my first patron-exclusive item at Patreon, where you can help directly support by work by pledging as little as $1 a month (you cancel at any time). Here's the start of the post:
When we think of the past, we often imagine it in black and white. Seeing early color photos or ones that have been realistically colored often jars the way we perceive historic events. The same is true with type and printed works of the past. We think of 19th century and earlier letterpress-printed works as being largely in a single color, and that color is black, sometimes with accents in a second color. Occasionally we’ll see a fancy example of multi-colored printing, but it stands out from that period. Any full-color images typically would have been printed by lithography and added later (“tipped in”) on blank pages reserved for the purposes.
But type could be parti-colored! (I’m sneaking in a favorite word, somewhat out of fashion: parti-colored means having or being made from two or more colors.) Printers relied on chromatic type, which was designed as sets of interlocking pieces for each letter or character. Each set could be printed separately in a unique color. When all the overlapping pieces of letters combined in a final print, you had the individual colors plus additional colors created by overprinting.
In a world of largely black-only printing with splashes of color, chromatic type could look spectacular.
As the wonderful culmination of my 2017 designer-in-residence position at the School of Visual Concepts, I gave a talk at the school last night. I covered the entire history of printing and my book-printing project, all tied together with the notion of imitation and creation and duplication. You can watch the talk on YouTube. It was an amazing year and I'm looking forward to new adventures in 2018!
Through a series of circumstances and research I’ll explain later, I was at the University of Washington library's Special Collections Book Arts and Rare Book Collection, meeting its curator. Unrelated to the topic at hand, I ask offhandedly if they have any Whitman. In fact, they have a very fine concentration of Whitman editions, including a first edition of a book I have particular interest in, November Boughs, which he published in 1888 after his health broke.
She pulled three editions, including that first one, and said there was something special: Whitman had written an inscription and signed it. (J.G. Milligan appears to be a fellow Brooklynite of Whitman’s from my quick research.)
I always think of these kinds of links from one person to the next: having held a book the edition of which Whitman not only wrote and for which he supervised the printing, but also held this particular copy, it's like forging a connection back to his time. He's no longer such a distant historical figure.
A judge's ruling in a long-running suit about the song "Happy Birthday"—technically, about its lyrics, not the music—came down this evening, and at first glance, it seemed to state incontrovertibly that those words were in the public domain. Then I read the entire decision carefully, and while that's the almost certain reasonable effect, it's not necessary as crystal clear as one would hope. (You can read my earlier coverage about the suit at Boing Boing.)
The good news? Warner-Chappell pretty much lost. The judge said there there was no proper rights assignment for the lyrics traced back to the origin of where there needed to be one in 1935. Warner-Chappell "do not own a valid copyright in the Happy Birthday lyrics." The music company could appeal, but a higher court has to accept the case and find an error in procedure and application of the law.
The bad news? The brief lyrics for Happy Birthday are almost certainly in the public domain, but sadly not definitively so. The judge walked through the facts of whether the lyrics were ever protected under copyright and, if so, whether they might remain so. But he didn't make a ruling on that matter, because the rights issue was enough to issue a summary judgment.
Nearly all the initial news coverage I've seen—AP, New York Times, NPR—errs in stating the judge put the work into the public domain. Let's get things straight.
Sing, Sing a Song
What's agreed on is that Patty and Mildred Hill created a set of school-oriented children's songs in the 1880s, and which were published by the Clayton F. Summy Co. in 1893 (There are lots of questions about how many times Summy Co. dissolved and reformed without a chain of ownership, probably losing many rights along the way.)
The sisters retained the copyright to those songs; this was never disputed. Mildred bequeathed hers to a younger sibling, Jessica; Mildred died in 1913 and Patty in 1946. The original song with the tune that goes to "Happy Birthday" is "Good Morning To All."
Mildred probably had nothing to do with the lyrics; she composed the music. So it's Patty's life and death date that can affect any potential remaining copyright. There's also no dispute that the music—the tune—is long out of copyright based on its 1893 publication date.
The judge's examination found a series of complicated potentials. The crux is this excerpt from his ruling:
Defendants contend, in brief, that the Hill sisters authored the lyrics to Happy Birthday around the turn of the last century, held onto the common law rights for several decades, and then transferred them to Summy Co., which published and registered them for a federal copyright in 1935.
- The sisters apparently never showed anyone the "Happy Birthday To You" lyrics, and neither Patty nor anyone else appears to have discussed the alternate lyrics until 1935 when Patty was deposed in a lawsuit about the use of those lyrics in a stage musical. It can't be assumed without a trial that she ever created them, the judge notes.
- Patty might have retained a common-law right in the lyrics prior to 1909, even if they were never published. But there's no proof she ever wrote them down. You don't need a manuscript to prove an unpublished work existed, but the burden of proof is much higher if you can't pull one out. In this case, we're talking about something that existed in the 1890s, and wasn't available for a 1935 trial.
- Other books appeared right after the turn of the 20th century containing "Happy Birthday" lyrics with and without the music, which was under copyright at the time. The image above is from a 1922 book that credited Summy Co. (which both parties in the lawsuit make clear didn't own any rights at the time). The song also appeared in musicals and later in talking pictures. However, there's no proof that any of those appearances were authorized, so that doesn't shift ownership. You don't have to defend copyright to retain it.
- The judge wonders if the common-law rights were abandoned, but doesn't settle the issue at all.
- Oh, goodness, there are even other possibilities, but these are the major ones.
If Copyrighted, Nobody May Live Who Owns It
So that leaves several possibilities, given the judge says no rights transfer took place in 1935:
- It remained an unpublished work and was never registered (there is no definitive record), in which case, by current copyright law in America, it enters the public domain 70 years after the death of the authors. Patty died in 1946, putting the expiration at January 1, 2017. (Jessica, inheriting the rights, doesn't figure into the end of their term.)
- The work was covered by common-law rights, which governed copyright before federalization in 1909, but those rights were abandoned.
- Someone else wrote the words. However, all the extant examples are either pre-1923, and now in the public domain, or published without the right copyright notice, and were in the public domain immediately on distribution.
- The work was somehow published in 1935 in a form that could be judged legitimate. There is no record of its renewal, to be sure, as the Hill sisters believed they transferred rights to Summy Co. Without a renewal, a work from 1935 expired 28 years later, or January 1, 1964.
If the first of these scenarios is accurate, it's a truly orphaned work—its copyright ownership forgotten, there remains no heir nor organization that would assert these rights through 2016. (I am not a lawyer, so I'm not advising you in this matter.)
Robert Brauneis, a law professor acknowledged to be the expert on this song—and even he missed some points that came up during discovery for the lawsuit—said:
"If [the Hill sisters] didn't convey the rights to Summy Co., then is there someone else that might still own them?" With Mildred Hill dead for nearly a century now, Brauneis said, "Figuring out who owned [the rights] at this point would be quite an interesting job."
If any of the other three scenarios are true, it's in the public domain, either since creation, never, or decades ago.
The next step, according to the plaintiffs in the suit, is to pursue class-action status for a lawsuit to claw back fees. While I was told when the suit was filed that it was likely that fees paid could only be reasonably claimed by parties licensing from about three years before the lawsuit was filed—the statute of limitations for that sort of situation—the plaintiffs' attorney told the L.A. Times:
…the plaintiffs will pursue Warner for royalties paid since "at least" 1988, and could also ask the company to repay royalties that have been collected all the way back to 1935. It's not clear how much money that could entail.
Warner may appeal; it's still reviewing the suit. This isn't over yet.
A colleague wrote recently after trying to find a column I'd written long ago for Adobe Magazine called "Eternal September," about how AOL letting everyone into Usenet newsgroups created the same conditions as each August and September when students arrived at universities and gained access for the first time to the worldwide discussions then taking place. I dug around and found this gem from the June/July 1996 issue, introducing people to memes—and doxing!Read More
My friend Roman Mars' podcast, 99% Invisible, just posted its latest episode, Of Mice and Men, about the history of the computer mouse. It's a terrific walk through the mouse's success and the lack of interest in single-hand or chording keysets. I provided some feedback to an early script, mostly around the edges of some historical facts, and the final story is absolutely dead on. (You can listen below in the browser.)
This reminded me of a short encounter when I worked at the Kodak Center for Creative Imaging in Camden, Maine. The short-lived teaching facility had 100 Mac IIfx models and millions of dollars of the most advanced storage, scanning, and camera gear available. We also had regular invitational events with artists and others.
At one such event in 1992, John Sculley, then Apple's CEO, attended. (He had a house in Camden at the time, too.) Kodak was using the event partly to show off Atex Renaissance, its desktop-publishing software that was going to compete against QuarkXPress and Aldus PageMaker.
The various Kodak product managers were helping the invited guests in our large computer lab use the software to create things. One was helping Sculley.
Kodak person: "Just type Command-K and it will format the text."
Sculley: "How do I do that with a mouse?"
K: "You can't. The keyboard is better."
Sculley: Pause. "No. It isn't."
He's a nice guy and that wasn't a chilling moment, but even the Kodak manager realized she'd stepped in it, telling the CEO of the company that had popularized the mouse to the extent that the mouse was closely associated with its brand that the keyboard is better.
The moment passed, and so did the software, which never caught on.
In 1994, I formed an internet Web development firm with my friend, Todd Haedrich. I came up with the name Point of Presence Company (POPCO). We managed to sign up three initial clients at what I recall was $25,000 per year: Peachpit Press (now part of Pearson), Atlas Model Railroad Company (owned then by Todd's uncle), and Faucet Outlet (a client of Todd's father's printing company).
A point of presence is a location at which two or more telecommunications parties meet for interchange. I picked it partly because it avoided trademark issues: the term was of general use in the field, and thus no company had used it, and nor could we specifically protect it or be blocked from using it.
We used to correspond with Jerry Yang when Yahoo was really Y.A.H.O.O., and had interesting conversations and sometimes did a little work with people who went on to run enormous corporations. (I used to have lunch with Jeff Bezos when he was starting up his crazy book company, because I had experience in the book industry and he did not.)
When Mosaic Communications shipped its first Netscape Navigator beta, it was logical for Marc Andreessen and Jim Clark's company to turn to Todd, who had been providing extensive beta feedback, for a quote for its press release:
"Netscape is the first Internet tool that lets the average user with a 14.4 kb modem work with the Internet interactively," said Todd Haedrich, principal of Point of Presence Company in Seattle. "It's fast, simple and elegant. The resources that Mosaic Communications provides for its novice users in Netscape, such as the Internet directories, rival any other site on the net for their quality and depth. Netscape will help bring more people on the Internet than any program since the original NCSA Mosaic."
Some people mark the start of the broader Web from the general availability of Netscape Navigator 20 years ago today, because it was the first legitimately free browser—for personal use! Anyone with an Internet connection could download it, and having done so, these early adopters would feel compelled to show it off to friends and colleagues. Usage spread rapidly thereafter.
Mosaic sowed the seeds of its own destruction through the free release. It gave the company's flagship product the benefits of rapid adoption, challenged Microsoft, and grew the Web. But it was never able to find a sustainable business model once the growth was underway, partly because of Microsoft's anti-competitive acts and partly because free is an extremely hard basis on which to build a competitive business. We're still fighting the cost of free today.