A Not So Happy Birthday
The companies that have been collecting royalties on the “Happy Birthday” song for the past 80 years will be singing a different tune this year. According to federal judge George H. King of the United States District Court for the Central District of California in Los Angeles, none of these companies have held a valid copyright claim to the song. This ruling is a reversal of decades of copyright claims. The judge held that Warner/Chappell, the publishing division of Warner Music, never had the right to charge for use of the song. Warner had been enforcing its copyright claim since 1988, when it bought Birch Tree Group, the successor to Clayton F. Summy Co., which claimed the original disputed copyright. Judge King ruled that a copyright filed by the Summy Co. in 1935 granted only the rights to specific piano arrangements of the music, not the actual song. The plaintiffs in the case included a group of filmmakers currently producing a documentary about the song. Plaintiffs’ attorneys described the “years-long legal fight as a David vs. Goliath battle, that pitted independent filmmakers against a large corporation collecting profits on a song whose authors had long since died.”
Until this ruling, Warner had been asking for royalties from anyone wanting to sing or play the “Happy Birthday” song with the lyrics. Their profits usually came from stage productions, television shows, movies, or greeting cards. The records from a hearing in the case show that the company has collected as much as six figures for certain single uses of the song, and according to a study of the song by Robert Brauneis, a professor at the George Washington University Law School, it brings in about $2 million a year in royalties. Even people wanting to sing the “Happy Birthday” song publicly as a part of a business (for example, a restaurant owner giving out free birthday cake to customers), technically are supposed to be paying to use the song. This is what sparked restaurant chains to come up with their own creative spins to the song in order to avoid paying royalties.
The “Happy Birthday” song (said to be the most recognized song in the English language) was created in 1893, when a Kentucky schoolteacher named Patty Smith Hill and her older sister, Mildred J. Hill, wrote the song for Patty’s kindergarten students, titling it “Good Morning To All.” The original lyrics were “Good morning to you / Good morning to you / Good morning, dear children / Good morning to all.” Patty also composed a melody to match the words that could be easily sung by young children. The sisters published the song in a book called “Song Stories for the Kindergarten,” and supposedly assigned the copyright to their publisher, Clayton F. Summy Co., in exchange for a cut of the sales. A third of the profits from licensing the song go to a charity of the Hill Family, the Association for Childhood Education International, whose 2012 nonprofit tax return indicates it received $754,108 in royalties.
The copyright status of the “Happy Birthday” song began to receive more attention starting in 1998 with the passage of the Copyright Term Extension Act. The Copyright Act of 1976 states that a copyright would last for the life of the author plus 50 years or 75 years for a work of corporate authorship. For works copyrighted before 1978 that had not already entered the public domain, the 1976 Act extended the term from 28 years to 47 years, giving a total term of 75 years. The 1998 Act extended these terms to the life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. For works published prior to 1978, the term was increased by 20 years to a total of 95 years from their publication. The Supreme Court upheld the Copyright Term Extension Act in Eldred v. Ashcroft in 2003, in which Justice Breyer specifically mentioned the issue with the further extension of the “Happy Birthday” song copyright in his dissenting opinion.
In this case, Warner agreed with the plaintiffs that the melody of the song had entered the public domain years ago, however Warner claimed it still owned the rights to the lyrics via the 1935 copyright. The judge ruled that it is not entirely clear that the Hill sisters wrote the lyrics, but it is clear that they never asserted a copyright claim for the lyrics or the melody. Judge King held that no evidence exists that Clayton F. Summy Co. ever legally obtained the rights to the song.
This ruling means that the song is considered a public work and is free for everyone to use without having to pay for it. One of the filmmaker plaintiffs called the decision a “great victory for musicians, artists and people around the world who have waited decades for this.”
However, Brauneis says the ruling does not explicitly place the song in the public domain. He believes it leaves some open questions regarding whether there is someone else that might still own the rights to the song, but he concedes that finding out who would be an “interesting job.” One of the plaintiffs’ attorneys believes that because no one else has ever claimed to own the copyright, this decision means the song is public property.
The plaintiffs’ attorneys plan to move to qualify the lawsuit as a class action, in order to try to recoup the millions of dollars in licensing fees Warner/Chappell has collected over the years. They will pursue Warner for royalties paid since at least 1988 and could ask the company to repay the royalties that have been collected since 1935. Warner could still appeal the decision, but it would have to ask the judge to permit an appeal to go forward, and the company has not indicated it will do so. A spokesman for Warner/Chappell said that it will be “considering [its] options.”
Mikaela Dealissia is a J.D. candidate, ’17, at the NYU School of Law.
