When Copyright Meets Patriotism: Who Owns the Copyright to National Anthems?

We are all familiar with national anthems although most of us don’t get to sing them much except when we belt them out, to various forms of accompaniment, at sports events. These pre-game rituals can sometimes be controversial, as we have seen in the US with certain athletes refusing to stand for the anthem as a form of social protest, or when a performer mangles an anthem (usually someone else’s). It seems to happen mostly at hockey games between US and Canadian clubs when the singer is unfamiliar with the words of the visiting team’s anthem. In what became known as the “Star Mangled Banner”, jazz singer Alexis Normand found—half way through the song—that she didn’t know the words to the US national anthem she was singing to open a hockey game in Saskatoon between a US and a Canadian team. The Americans got their revenge a couple of years later though, when anthem singer Jill Schackner decided to insert some lines from America the Beautiful into O Canada at an NHL game in New York. Apparently the worst-ever known rendition of O Canada occurred at a football game featuring a Canadian and an American team back in 1994 in Las Vegas when the singer lost the plot, and the tune of O Canada morphed into O Tannenbaum by the final stanza. You can hear that version here.

It may not be surprising that foreign singers have difficulty with O Canada since most Canadians can’t keep up with all the wording changes. The anthem continues to undergo regular revision, the most recent change being to make it more gender neutral by getting rid of “in all thy sons’ command” for “in all of us command”. While the English version has undergone a number of minor tweaks over the years, the original French lyrics, which are redolent of 19^th century religious imagery and have no connection to the English-language words, have remained untouched. The original English lyrics were written 30 years after the French version. The music was composed by Quebec composer Calixa Lavallée in 1880 but the anthem did not become official until a century later, when the National Anthem Act was passed on June 27, 1980. As part of that Act it was declared that the melody and words of O Canada would be left in the public domain, although it is possible to copyright specific arrangements of the melody. Perhaps that singer in Las Vegas could copyright his Christmas Tree version of the Canadian anthem?

In the US, almost everyone knows that Francis Scott Key penned the words to the Star Spangled Banner while watching the British bombardment of Fort McHenry during the War of 1812, but I wonder if most Americans realize that the music was written by an Englishman, John Stafford Smith in 1773, (the music to which the anthem is set is an adaptation of a pre-existing English tune) and that the Star Spangled Banner did not become the official anthem of the United States until 1931. Although Key’s and Smith’s copyrights were long exhausted by that time, as a result of that decision the work was declared to be in the public domain for all US citizens. However, as explained here, mechanical, publishing and performance rights may still apply.

Anthems can have many forms. Often they are unilingual but in some cases there are versions in more than one language, as in Canada (English and French) or New Zealand (Maori and English). In South Africa, the current anthem incorporates five languages into its unified text, Xhosa, Zulu, Sesotho, Afrikaans and English. This anthem, adopted after the end of apartheid, has become a symbol of reconciliation, blending part of the apartheid era South African anthem with an African protest hymn, Nkosi Sekelel’ iAfrika. It is a musical symbol of the new South Africa. While this new anthem dates from 1997, some anthems are much, much older although in many cases they were not officially adopted until fairly recent years. The Dutch anthem is reputed to be the world’s oldest, dating back to the 1570s although it did not officially become the national anthem until 1932.

In some countries, the wording is rousing and even violent–as in the case of the Marseillaise, a French revolutionary war song which speaks of savage invaders coming to slit the throats of sons and comrades, and the need to spill their impure blood in the fields–or they can be peaceful and happy, as in Advance Australia Fair;

“Australians all let us rejoice; For we are young and free; We’ve golden soil and wealth for toil; Our home is girt by sea…etc.”

In a couple of cases, a country has no official anthem, as is the case with England and Scotland, who have adopted popular songs (Flower of Scotland and Land of Hope and Glory) to represent themselves when they meet in international sporting matches. (God Save the Queen is shared by them both as the official anthem of the United Kingdom, but when England is playing Scotland in rugby, for example, each side wants something more rousing). In other instances, an anthem has to be created, as when a newly independent country is established. In some instances, there is a popular resistance or traditional song that can be adopted, as was the case in Ireland, although copyright issues dogged the adoption of the Soldiers Song as the Irish anthem and the Irish Government eventually had to purchase the copyright. In others, one has to be created out of whole cloth, as happened in the case of Vietnam in 1945 and Uganda when it achieved independence in the 1960s. In both cases, this has led to copyright disputes.

In Vietnam, when the Republic of Vietnam was proclaimed in Hanoi in the fall of 1945 after the surrender of Japan and before the return of the French, the work of composer Van Cao was played as the new anthem of the Republic. It became the anthem of the united Vietnam in 1976 after the fall of Saigon. Fast forward to 2015 when the family of Van Cao, who was by now deceased, registered the copyright for the work, and started collecting royalties. This led the government to claim that the work had been donated to the nation, a claim that Vao’s son refuted, stating there was no family consensus on the matter. Oh dear.

The case of Uganda is even messier. In Uganda, as independence approached in 1962 the government decided to hold a contest, with a cash prize, to find a national anthem. As outlined in a detailed analysis on The IP Kat (a leading international copyright blogsite), the winner of the contest was Professor George Kokoma, who was paid 2000 shillings for his composition (that is 54 US cents at today’s exchange rate—I hope it was worth more back in 1962!). It appears that some years later, Professor Kokoma figured that he had been shortchanged and sought the copyright to the anthem so that he could license it to the government. (No mention of copyright terms was made when the contest was announced.) When this failed, he instituted an action for copyright infringement, and claimed royalties for use of copyright and damages for infringement at the lower court. The lower court dismissed his claim but nonetheless awarded him 50 million shillings ($13,000) in compensation. At some point in this process, Professor Kokoma passed away but his wife, on behalf of the estate, was not satisfied with the decision and appealed. The appeal was dismissed, the court finding that the Ugandan government had held the copyright for 50 years under a “work for hire” interpretation, but that it had expired in 2012 at the end of the statutory term of protection. To make matters worse, the Appeal Court reversed the decision awarding the 50 million shilling payment!

Now the IP Kat blogger, Chijioke Okorie, questions whether this was the right decision given that vesting of copyright requires an employment contract and since the work was performed as part of a contest, no employment nexus existed. In fact, she argues that there was an implied licence in the terms of the contest allowing the government to use the work, since it was advertised as a competition to create a new national anthem. She argues that the current interpretation of the court is of concern because, using its logic, any contest organizer becomes the copyright holder for any work submitted to a contest through social media or any other format. (Of course, the contest may specify copyright terms to avoid this issue.)

Who knew what knots people would tie themselves into over the ownership of the copyright in an anthem? And with such counter-productive results. It makes the “Star Mangled Banner” and the blending of America the Beautiful with O Canada look like child’s play. And since the O Tannenbaum rendition of the O Canada lyrics modified Calixa Lavallée’s music, it can’t be the real O Canada, and therefore is not necessarily in the public domain. Maybe it’s under copyright?

© Hugh Stephens 2019. All Rights Reserved.

Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores. View all posts by hughstephensblog