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“Happy Birthday” May Be in the Public Domain, After All

Photo of lit candles on a cake that spell "Happy Birthday"You probably have sung Happy Birthday [to You]” countless times. This post is about a company that has been collecting royalties from that song and the possibility that those royalties soon may stop.

In 1893, sisters Mildred Jane Hill and Patty Smith Hill published a collection of children’s songs. One of the songs – with the tune that we now know for “Happy Birthday to You” – was “Good Morning to All”.

Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.

While no one knows for sure who wrote the “Happy Birthday” lyrics, their first known publication was in 1912.

Happy Birthday to You” Copyright Registrations

In 1935, Clayton F. Summy Company, working with the authorization of Jessica Hill, filed several copyright registrations for various versions of the song. Following decades of mergers, acquisitions, and spinoffs, Warner/Chappell Music, Inc. became the successor to Summy and claimed to own the copyright in “Happy Birthday”.

People singing the song for personal celebrations don’t need to worry about copyright ownership. But Warner/Chappell has demanded that anyone who makes a recording or a public performance of the song pay royalties.

Class Action Lawsuit

Good Morning to You Productions Corp. (“GMTY”) and fellow plaintiffs filed a class action lawsuit against Warner/Chappell. The suit alleges that Warner/Chappell does not own a valid copyright in “Happy Birthday“, thus the song is in the public domain. The suit requests, among other remedies, declaratory and injunctive relief and return of royalties paid since 2009. (See the Third Amended Consolidated Complaint.)

Perhaps the most interesting development is that yesterday (July 27, 2015), GMTY filed a motion for a summary judgment. That motion is based on newly-discovered information that resulted from recently-disclosed documents that defendant Warner/Chappell Music, Inc. “mistakenly” failed to disclose a year earlier.

Newly-disclosed Documents

As described at pages 4-5 of the motion, plaintiff found a 1922 publication of the lyrics without a copyright notice, meaning that the lyrics had been dedicated to the public as of that date. Accordingly, the 1935 registrations pertained solely to the relevant piano arrangements and not to the lyrics.

(Note that even if there had been a 1922 copyright notice, the copyright would have expired like any other pre-1923 copyright. See How Old Can a Copyrighted Work Be?)

So, my guess is that “Happy Birthday” soon will be declared to be in the public domain, and that there no longer will be any need to pay royalties. I will update this post as I learn of further developments.

* * *

On September 22, 2015 the U.S. District Court for the Central District of California ruled as I expected. Quoting the conclusion of the court’s Memorandum and Order (emphasis added):

The summary judgment record shows that there are triable issues of fact as to whether Patty wrote the Happy Birthday lyrics in the late Nineteenth Century and whether Mildred may have shared an interest in them as a co-author. Even assuming this is so, neither Patty nor Mildred nor Jessica ever did anything with their common law rights in the lyrics. For decades, with the possible exception of the publication of The Everyday Song Book in 1922, the Hill sisters did not authorize any publication of the lyrics. They did not try to obtain federal copyright protection. They did not take legal action to prevent the use of the lyrics by others, even as Happy Birthday became very popular and commercially valuable. In 1934, four decades after Patty supposedly wrote the song, they finally asserted their rights to the Happy Birthday/Good Morning melody—but still made no claim to the lyrics.

Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics. Defendants’ speculation that the pleadings in the Hill-Summy lawsuit somehow show that the Second Agreement involved a transfer of rights in the lyrics is implausible and unreasonable. Defendants’ suggestion that the Third Agreement effected such a transfer is circular and fares no better. As far as the record is concerned, even if the Hill sisters still held common law rights by the time of the Second or Third Agreement, they did not give those rights to Summy Co.

Because Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.

Photo credit: WikipediaCC BY-SA 3.0

Dana H. Shultz, Attorney at Law  +1 510-547-0545  dana [at] danashultz [dot] com
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