Judge Rules “Happy Birthday” Song Copyright is Invalid
The “Happy Birthday” song is undoubtedly an idiosyncrasy in almost everyone’s childhood memories. Like the “ABC’s”, or “Itsy Bitsy Spider,” it’s likely you’ve never sought the origin of these familiar tunes. However, the origin of the “Happy Birthday” song recently found its way to the center of a class-action lawsuit between Time Warner and its licensees. It all started when Jenn Nelson, a documentary filmmaker, was charged a $1,500 licensing fee to use the song in one of her films. After Nelson read a paper written by a George Washington Law School professor, she decided to bring her case to court. The licensees requested reimbursement, as well as declaratory relief that the song is public domain (that the Warner copyright is invalid).
A Brief History
It all started when two sisters in 1893, Patty Smith and Mildred Hill, composed a song called, “Good Morning to All,” and later assigned the rights to the Clayton F. Summy Company under a royalty agreement. The tune later evolved into “Happy Birthday”. The “Happy Birthday” song lyrics were published in the 1920’s and in 1935, which became the crux of litigation. Warner argued that the copyright can be traced to the publication in 1935, and that the copyright is valid until 2030, the prescribed 95-year term as specified in the 1990 Copyright Act (unless, of course, a court determined the composition is public domain). [i]
The licensees all thought that having to pay for the song was somewhat ridiculous, but did it anyway. Warner was collecting about $2 million per year in licensing fees for the “Happy Birthday” song. There are two elements that must be established in a prima facie case of copyright infringement: (1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original. Because the song was licensed, this was not an infringement action, however, the first element was at issue during litigation. While Warner argued that the 1935 publication prescribed the duration of the copyright, the plaintiffs were about to uncover a goldmine that Warner says was “mistakenly held back” in discovery. Warner later produced 500 pages that included 200 pages of documents that had not been sent to the plaintiffs. Within these documents was a 1927 publication of the song with “special permission” of a company that had once owned the copyright to “Happy Birthday”. The plaintiffs did some investigating, and found earlier editions with a publication date of 1922. The 1922 songbook contained no copyright notice.
Upon a motion to supplement the record, the plaintiffs also filed a motion for summary judgment based on the 1922 songbook – specifically, that the lyrics have been in the public domain since the date of that publication. Warner argued that the motion for summary judgment was inappropriate, as the 1922 publication creates a material issue of fact (whether the company that authorized the 1922 publication owned the copyright). The plaintiffs note that the special permission line was the only line that was blurred within the entire PDF file they received from Warner. Warner denies acting in bad faith, stating they did not notice the blurred text at the bottom of the document. [ii]
Nelson and the licensees were happy to learn the judge agreed with them. “Our goal [was] to release the song into public domain where it belongs, and where we think it’s been all along. It’s the peoples’ song, it belongs to the people. We think people should be able to use it however, whenever, [and] wherever they’d like.” [iii]
U.S. District Judge George H. King noted that although some records refer to the melody or piano arrangement, the “Happy Birthday” lyrics are absent from copyright records. The Judge agreed with the plaintiffs, that Summy Co. never actually acquired rights in the “Happy Birthday” lyrics, making Warner’s alleged subsequent copyright invalid. The plaintiffs intend to pursue Warner for royalties paid at least as far back as 1988, but may ask for repayment all the way back to 1935. However, it’s possible that Warner will appeal the decision, although the company has not indicated pursuing such objective. [iv]