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Copyright usage on The Teddy Bears Picnic

Posted: Sat Oct 29, 2016 8:52 am
by Confused1977
I am looking to produce a 5 min short film to be released online (youtube). For a project I have been developing for a while, finally deciding to make a leap into financing a short to build interest/funding for a potential feature.

In it I want to use the song "The Teddy Bears Picnic". I was looking at using the original 1932 Henry Hall recording. To have the audio recorded off a gramophone. The title of the short was to be "Teddy Bears Picnic".

So this is where things get confusing and hence my query.

It's a complicated song as the melody was written in 1907 by John Walter Bratton (1831-1947) and lyrics added in 1932 by Jimmy Kennedy (1902-1984).

50% is owned by Warner (guessing lyrics) and 50% Sony (melody). I have been in communication with both, whatever one party charges I have to match the highest rate to both (mfn with copub).

The price went from ""If it's for YouTube only and it's not branded there shouldn't be any issues"", to a reasonable (but not cheap) sum, to then doubling if the title of the short was to be "Teddy Bears Picnic". As "This makes things more difficult to approve because don't want the song to seem like it's directly associated".

The other party has said, it's fine and if i re-record (cover) it and not alter anything, there would be no charge and don't see an issue with using the title "Teddy Bears Picnic". I then queried this with the other party and they have still said Re-Recording or not the suggested fee is X, as I'm using the title "Teddy bears picnic" (which would actually about £100 less than just use the masters).

All this is pending approval! Which I'm concerned I wont get it due to the nature of the story. Im worried Ill be damned if i do and damned if i don't. If one party doesn't like the treatment and refuses approval after I've agreed to a fee. I will then have major trouble so I need to look for possible work arounds regardless and it's just a case of being cheap/cutting costs but I really want explore all options to get some back up plans.

A) Can they copy right "Teddy bears picnic" usage?

B) Can they Do a cease and desist if I just re-record it and use that version of my own? one has said "we would SUGGEST the following feesâ€￾. If I title the film and then use the song within it, am in danger of deformation, if the film is considered inappropriate for children, who they consider the song's primary audience.

C) If I re-record JUST melody NO lyrics and use the title "Teddy Bears Picnic". Would this be acceptable? Circumnavigate one party involvement as the Melody is called "The Teddy bears Picnic", before the lyrics where added later. I have original sheet music copyright 1907 by M.Witmark & Sons. So would that violate copyright/licensing laws?

D) If I paid the lyrics people the X amount but re recorded it would I then not have to pay the melody people? (effectively halving costs). Or would this not work still because of the mfn.

E) Does the fact that the song is "The Teddy bears picnic" and i want to call the short "Teddy bears picnic" alter anything. Are there be any title abbreviation loopholes? like Bears' apostrophe or "The Teddy bears picnicSomethingâ€￾, “Teddy bears Somethingâ€￾, “The bears picnicâ€￾, “Teddy bearsâ€￾ or simply “Teddyâ€￾.

F) Where do I stand having just the melody playing on something like an old music box?

I spoke to one about the possibility of the Melody entering into the public domain next year. but they said it never happens. I don't want to spend all the time and money and have its hit with a cease and desist from a giant corp with lawyers paid more per hour than most short film budgets. I want this to be above board as possible to appeal to backers beyond just the short. Someone mentioned E&O insurance, not sure what that is? Would a lawyer need to go over it all legal to make it secure?

I want this to be above board as possible to appeal to backers beyond just the short.

Any help is Incredibly grateful, Thanks!

Posted: Sat Oct 29, 2016 9:57 am
by Confused1977
Thought of two other points.

G) If I pay for the rights to record my own cover version, can X dictate, block the usage of it in the context of a film?

H) What if I take the original Melody and write new Lyrics?

Posted: Sun Oct 30, 2016 11:01 pm
by AndyJ
Hi Confused1977,

The problem with questions like yours which relate to specific works is that it is all too easy to become side tracked into researching at too detailed a level!

Anyway, before attempting to answer your specific questions, a bit of background is probably in order.

There are three different types of copyright operating here: a musical work, a literary work (the lyrics) and a number of different sound recordings. And we are dealing with, in part, US copyright, because the two companies which claim to own the rights are based there. Or at least it is likely that Warners and Sony are dealing with their licences based on the US copyright situation. I will deal with the implications of this for you in the UK in a moment. But first, two words of caution. Warners in particular have demonstrated a remarkably cavalier attitude to claims they have made about some works in their catalog. I think the comment you received to the effect that music never enters the public domain, is fairly typical of the attitude that, by one method or another, the large music publishers (and record and film companies) do their best to extend copyright for as long as possible. Warners came unstuck recently over their claim to hold the copyright in the song Happy Birthday from which they had been earning millions of dollars from licensing. The second word of caution concerns the way in which copyright terms in the USA used to be calculated. This is a notoriously complicated area and depended on a number of so-called formalities such as registering, then re-registering copyright and displaying the correct copyright notice on the work in question; failure to follow these steps meant that copyright would not even have existed in the first place. Add to this the fact that, in this case, the music was created in the USA and the lyrics in the UK, and you have a recipe for the sort of complicated mess you have already discovered.

Let's start with the music. As you mention this was composed by J W Bratton who registered it for copyright purposes on 8 Jan 1907 with the Library of Congress. He then sold the copyright to the New York music publishers M Witmark and Sons, who were subsequently taken over by Warner Music. This registration would have meant that copyright in the music would last initially for 28 years (that is, until 31 Dec 1935) and if it was re-registered during the 27th year, this would have been extended for a further 28 years (ie to the end of 1963). However I cannot find a record of the re-registration in either 1934 or 1935. But, either way copyright in the music would have ended at the end of 1963 at the latest under the old system, and would not have been revived by the 1976 Copyright Act which introduced the concept of copyright terms in the USA being based on the lifetime of the author, as it had been in Europe for at least a century.

Jimmy Kennedy's lyrics followed many years later in 1930. Kennedy was working for a music publisher named Bert Feldman when a pantomime producer asked for some words to go with Bratton's music. Kennedy wrote the well-known lyrics and the song was included in a pantomime in Manchester later that year, but the lyrics were not published in sheet form at the time and lay around gathering dust until, in 1932, Henry Hall's arranger, Tony Lowery, visited Feldman looking for a song suitable for a broadcast to children and Kennedy unearthed the lyrics. However at this stage there was no formal agreement with Bratton or his publishers to use the music. Lowery produced a new arrangement of the tune and Henry Hall broadcast a performance of the song on his BBC programme. Due to the popularity of the broadcast Henry Hall subsequently made a studio recording of the song that was issued as a record which went on to sell over 4 million copies. This new arrangement of the music may be significant, because if it was sufficiently novel, a new copyright in the music may have come into existence at that point. If so, then this new copyright (created in the UK) would have run for the lifetime of the composer plus 50 years (the UK term at that time) meaning that the new copyright term would have run until the end of 1997, but because the post morten element was extended by 20 years in 1995, this possible new copyright will not expire until 31 Dec 2017. However it is far from certain that a new copyright was created by Lowery's arrangement - although no doubt Warners will argue this just as they did over the Happy Birthday song.

The story with the copyright in the lyrics is more straight forward. Kennedy was British (born in Northern Ireland) and wrote the lyrics in England and so the term which would have applied to his lyrics was his lifetime plus (after the 1995 change in the law) 70 years, meaning that the lyrics will remain in copyright until 31 December 2054. Interestingly, because Kennedy gave the lyrics to Lowery without first getting permission from his boss Feldman, he was denied a writing credit and any royalties for the song until Feldman died in 1945. Due to this, for many years people believed that Bratton had written both the words and music since his was the only name to appear on the early sheet music.

And then there is the copyright in the various recordings of the song. Copyright (in the UK) lasts for 70 years from the date of publication, meaning that the Henry Hall recording is no longer in copyright, but of course that does not mean that the recording may be freely used as the copyright in the lyrics, at least, remains extant. The duration of copyright for sound recordings (usually referred to as phonograms) in the US is not really relevant here as you don't mention wanting to use any solely US recordings.

So turning to your questions.

A. Copyright exists to protect an author's work from being copied without permission, so yes if Warners/Sony have a legitimate claim to the copyright in the words and music, they can deny permission for the song to be used.

B. Assuming the legitimate claim already mentioned, then yes either publisher could issue a Cease and Desist letter in respect of the rights they claim to own. However there is no copyright in the song's title and so you can freely use that in connection with your film. Assuming you obtained a licence to use the song within your film, then the rights owners are within their rights to stipulate how the song may be used, and if you were to flout these terms, you could be sued for breach of contract. I don't think defamation would ever enter into it.

C. I am fairly sure that copyright in the music has expired, and if I am right then using the music without the lyrics, but with the title would be perfectly acceptable. You need to challenge Warners to provide evidence of their assertion that the music copyright is extant. Since the music was first published in the USA, UK law will not enforce a greater term than is available in the country of origin - meaning that the publisher cannot try to apply the UK's lifetime plus 70 years to John Bratton's work.

D. If I am right about the music being out of copyright, then you certainly should not be paying for a licence to use the music. So yes, paying just for the lyrics would be the best option.

E. As I have mentioned the title is not subject to copyright and so, subject to any licensing term, you are free to use what ever title you wish.

F. If the music is out of copyright, then you can play it in any form you wish. Indeed if you have a copy of the original sheet music and perform that on what ever instrument you choose, there would be no copyright infringement even if the Lowery arrangement did somehow create a new copyright work.

G. If you want to do a cover of the lyrics, you will need a licence, and as already mentioned that licence can include any terms the licensor deems appropriate. If as I suspect you don't need a licence to use the music then you can make a new recording of the music.

H. Again, assuming the music is out of copyright, then this would be fine. Noel Coward produced a version to the lyrics which involved Teddy Boys, but I think you need to make sure that any new lyrics are either sufficiently different from Kennedy's lyrics that you cannot be said to infringe them, or you set out to parody the original words, in which case you would be protected by the new parody / pastiche exception.

Posted: Mon Oct 31, 2016 10:23 am
by Confused1977
Thank you so much for this information AndyJ.

Teddy Bear's Picnic

Posted: Thu Feb 02, 2017 8:03 pm
by PeterMillett
How did you get on with your request from Sony/Warners? From what I gather the instrumental version is 100% in the public domain.



Re: Teddy Bear's Picnic

Posted: Wed Feb 08, 2017 1:31 pm
by Nick Cooper
PeterMillett wrote:How did you get on with your request from Sony/Warners? From what I gather the instrumental version is 100% in the public domain.
It's probably based on the reasoning that since the melody was by John Walter Bratton, who did not die until 1947, it remains protected in the UK and Europe until the end of this current year. This notwithstanding Andy's observation that as a work first published in the United States, this may not be enforcible.

Posted: Fri Feb 10, 2017 10:01 am
by PeterMillett
Cheers Nick.

Re: Copyright usage on The Teddy Bears Picnic

Posted: Sat Dec 05, 2020 1:09 pm
by PeterMillettNZ
Hi Andy

A very long overdue question on this thread. What is the US copyright status on the lyrics created for the Teddy Bears Picnic by Irish lyric writer Jimmy Kennedy? Assuming they were re-registered after first having copyright applied in 1932 then that should make it 2027 for copyright expiration? (95 years). Or is there another scenario? Particularly if the US copyright wasn’t re-registered after 1932.

I did a US copyright search on Jimmy Kennedy for 1960 (1932 + 28 years) and also 1958, 1959 and 1961 for good measure. I found a long list of his most popular songs specified for renewal (South of the Border, Red Sails at Sunset etc.) repeatedly over these dates, but no mention of the Teddy Bears Picnic.

I did find John Bratton's re-registration of Teddy Bears Picnic though - 1934 (No's 1-9). Listed as: Teddy (The) bear's picnic: characteristic two step R29219. That meant he re-registered within 28 years of 1907. It shows copyright for him as the author. That means he lived to see his works in copyright until his death in 1947.

On May 29th 1939 there's an entry for The Teddy Bear's Picnic showing John Bratton as the writer and Paul Yoder as the arranger. Copyright for that entry is by Witmark & Sons, New York.

Thanks again for your expert thoughts.

Pete :)

Re: Copyright usage on The Teddy Bears Picnic

Posted: Sun Dec 06, 2020 9:46 am
by AndyJ
Hi Pete,

Thanks for the supplementary question. I'm glad you've done the leg work on the situation regarding the registration of US Copyright. Since we can be fairly sure that the country of origin of the lyrics for copyright purposes is the UK, if the lyrics had also been registered in the USA (either around 1930 or later) then any subsequent copyright protection would only have applied within the USA and would be unenforceable in, say, the UK or New Zealand. However as there appears to have been no such US registration for the lyrics and no re-registration in around 1958 in Kennedy's name I think that copyright in the lyrics would not have come into existence in the USA at that time because the USA was not then a signatory to the Berne Convention. However that all changed in 1996 because of something called Uruguay Round Agreements Act (URAA). This was prompted by a trade agreement which included a section on the recognition of foreign intellectual property rights as part of the General Agreement on Tariffs and Trade (GATT). The URAA restored copyright in foreign works (ie works first published outside the USA) that, as at 1 January 1996, were in the public domain in the US because of a failure to comply with US formalities. One of the authors of the work had to be a non-US citizen or resident, and the work could not have been published in the US within 30 days after its publication abroad, and the work needed to still be in copyright in the country of publication. Such works have a copyright term equivalent to that of an American work that had followed all of the formalities (more details in this Library of Congress Copyright Office Circular: Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA))

So assuming that the lyrics were first published as a result of the Henry Hall broadcast in 1932, we need to add 95 years to that, meaning that the copyright in the USA for the lyrics on their own will last until the end of 2027.

However just to re-iterate, that term only applies within the USA. Copyright in the lyrics in the UK would still be determined by the author's lifetime plus 70 years after his death, so as Kennedy died in 1984, copyright will run until 31 December 2054. In NZ it will end twenty years earlier as your copyright term only runs for 50 years post mortem (section 22 of the NZ Copyright Act 1994) This is due to the doctrine enshrined in the Berne Convention that only the shorter of two (or more) conflicting copyright terms should apply within a member state. As you may imagine, Warners/Sony will no doubt latch on to the 2054 date to justify their claims over the song itself.

Re: Copyright usage on The Teddy Bears Picnic

Posted: Sun Dec 06, 2020 11:03 am
by PeterMillettNZ
Thanks Andy!

What a thorough and concise response. That pretty much sums it up perfectly. It would quite safe to assume that the lyrics are in copyright in America until 2027 and elsewhere longer with the individual country by country copyright period variations.

The background information regarding the 1996 act is extremely helpful to know. A complex calculation has been made nice and easy to follow courtesy of your post.


I'll revisit this thread again in 2027 and see what's happened by then!

Kind regards

Pete :)

Re: Copyright usage on The Teddy Bears Picnic

Posted: Tue Dec 08, 2020 10:55 pm
by AndyJ
Thanks to some extra research by Peter Millett I can update this thread a little, although it has to be said, the issue raised initially by Confused 1977 becomes no clearer.

Peter discovered this information on the obverse of the title page of a book he had found:
Image (Click on the image to see a bigger version)

This appears to provide evidence that Warner Bros (the predecessor to Warner Music Inc) was the owner of the US copyright in the words of the song. However the two dates for registrations 1907 and 1947 don't appear to refer to the same thing, namely the lyrics. In 1907 Jimmy Kennedy the author of the lyrics was 5 years old. Clearly the 1907 reference is to John Bratton's music, and indeed there is an entry in the Copyright Register to this effect for 1907. Peter has discovered that the music copyright was renewed in 1934 (ie 27 years after the initial registration as was the rule at the time) which confirms that Bratton's copyright would have ended on 1 Jan 1965, after the statutory 56 years of protection.

This led to the discovery of the 1947 Copyright Register* entry referred to above, shown here:
The letter 'm' in front of John Bratton's name shows him as the author of the music, while the 'w' in front of M Witmark & Sons indicates they are the authors of the words. While this is clearly wrong, it may indicate that Witmarks had somehow acquired the US rights to the lyrics, possibly through a deal with EMI who owned the original UK copyright. The link between the reference to Witmark & Sons in the actual entry in the register and the copyright page reference (first image above) to Warner Bros Inc can be explained by the fact that Warners bought out M Witmark & Sons in 1929 although the company continued to trade under that name until the formation of Warner Chappell Music in 1987 within the Warner Music Group Inc.

The situation is made more confusing by the copyright information contained in two other books which Peter has uncovered. Since the information is largely the same in both, it is only necessary show one of the pages here:
This time the date of copyright in the words is given as 1907 and ownership is attributed to M Witmark & Sons. Clearly the date is wrong since that refers to the music, while the book from which the image above was taken only deals with the words, in the form of poetry. And oddly while Jimmy Kennedy is credited as the author of the words on the book's title page, the book's publishers seem happy to accept M Witmark & Sons are the owners of the copyright along with a spurious date for their creation.

Of course none of this really affects the basic facts that the music by John Bratton is out of copyright and has been since 1965, and the copyright in Kennedy's lyrics has many more years to run, whoever is its owner today.

*Catalog of Copyright Entries Part 5B Unpublished Music, Jan - Dec 1947 page 686, recovered from the Internet Archive.

Re: Copyright usage on The Teddy Bears Picnic

Posted: Fri Feb 26, 2021 1:04 pm
by Nick Cooper
Looking at the OP, this is a depressingly telling detail: "I spoke to one [rights holder] about the possibility of the Melody entering into the public domain next year, but they said it never happens." Which is obviously a blatant lie.

This looks like yet another example where putative or actual rights holders deliberately set out to confuse people about the copyright on a particular work, or combined work.

Re: Copyright usage on The Teddy Bears Picnic

Posted: Sat Jul 30, 2022 5:12 pm
by smbrooks
This has been fascinating to read. I know copyright law is a pain in the neck and was originally set up to protect the artist, but now it seems to help large corporations to make as much money as they can.
Dipping my toe into the copyright and public domain realm, I have re-written the lyrics for my own purpose as a parody! Phew! Thanks Andy for the detailed responses, and to Confused1977 for the original question. I guess Jerry Garcia and Dave Grisman went & got permissions from all and sundre!