Happy Birthday, You’ve Been Sued
I’ve found that it often comes as a surprise that somebody owns the rights to the “Happy Birthday” song (its complete name is “Happy Birthday To You.”) The fact that a part of our common cultural heritage – and an element of countless fond memories – is a piece of intellectual property that is under the control of a multinational corporation, Warner/Chappell, the publishing arm of the Warner Music Group, can seem like one of the more absurd twists of IP law. Nonetheless, Warner claims to own the rights, and it generates annual licensing fees that have been estimated at $25 million.
Notice the word “claims.” Does Warner really own the rights? Is it in the public domain? A recent lawsuit filed by a documentary filmmaker aims to settle these questions once and for all.
The lawsuit alleges that the melody for the song, with the original title “Good Morning to All” and lyrics along those lines, was authored prior to 1893 by sisters Mildred and Patty Hill. The Hill Sisters assigned the rights in the song, and they were passed from one party to another.
It’s not clear exactly when the famous “Happy Birthday” lyrics became attached to the song, but there’s evidence that people were singing the version we know today by about 1901. The first known publication of the words and melody together occurred in 1924. Various copyright registrations were filed from time to time for the song from the 1920s through the 1930s; the lawsuit alleges that these were all invalid because they “consisted of information that was common property and contained no original authorship, except as to the…arrangement itself.”
Translating from the legalese: copyright registration is appropriate for an original work of authorship. One cannot simply register a copyright for a pre-existing song. However, if you were to publish a new arrangement of an old song, you could obtain a copyright registration for the unique elements in the arrangement.
To put it another way – if a musician comes up with a new way for a group of instruments to play a public domain work such as Beethoven’s 5th Symphony, and she publishes that new arrangement, copyright protection would apply only to the new arrangement itself, not to Beethoven’s original work.
The lawsuit in question arose when a filmmaker, Jennifer Nelson, began working on a documentary about the song, to be titled, you guessed it, “Happy Birthday.” One scene was to feature a performance of the famous tune. When she learned that Warner was demanding a licensing fee of $1,500 (and that she would face a statutory penalty of $150,000 if she used the song without permission), she complied, but after further research, she initiated a class action lawsuit in the United States District Court for the Southern District of New York.
The lawsuit proposes to resolve the following questions:
- Whether the song is in the public domain;
- Whether Warner is the exclusive copyright holder for the song;
- Whether Warner has the right to collect fees for its use;
- Whether Warner violated the law by demanding and collecting fees based on an invalid copyright; and
- Whether and how much money Warner has to return to the parties from whom it collected fees.
The facts of the case may turn on knotty details involving various publications of the song, whether or not the copyright was renewed in 1921, and the possibility that the lyrics may still be subject to copyright protection even if the melody is not. If the case reaches a judicial conclusion, the result may be narrow (based on these specific facts), or the court may take the opportunity to render a more sweeping judgment about the copyright status of older works.
It will also be interesting to see whether various other parties become involved. Warner’s entertainment industry competitors may want to see “Happy Birthday to You” fall into the public domain – that would allow anyone to use the song in movies, TV shows, commercials, or anywhere else it may fit into a story or help to sell a product, without requiring any licensing fees. However, some of those same competitors, such as Disney, may see this suit as a threat to their own venerable and valuable copyrights.
For now, at least, I’ll be watching as a court weighs who owns what is billed as the world’s most famous song.
