Federal Judge Rules ‘Happy Birthday To You’ Copyright Invalid

A Federal Judge has ruled that the copyright to 'Happy Birthday To You' has been invalid for at least the past eighty years.

copyright-law

A Federal District Court Judge has ruled that the copyright held by a music publishing company for the song ‘Happy Birthday To You’ is invalid, meaning that the copyright fees that have been paid on the song for the past eight decades never should have been paid at all:

None of the companies that have collected royalties on the “Happy Birthday” song for the past 80 years held a valid copyright claim to one of the most popular songs in history, a federal judge in Los Angeles ruled on Tuesday.

In a stunning reversal of decades of copyright claims, the judge ruled that Warner/Chappell never had the right to charge for the use of the “Happy Birthday To You” song. Warner had been enforcing a copyright since 1988, when it bought Birch Tree Group, the successor to Clayton F. Summy Co., which claimed the original disputed copyright.

Judge George H. 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.

“‘Happy Birthday’ is finally free after 80 years,” said Randall Newman, an attorney for the plaintiffs in the suit, which included a group of filmmakers who are producing a documentary about the song. “Finally, the charade is over. It’s unbelievable.”

A spokesman for Warner/Chappell, the publishing arm of Warner Music, said, “We are looking at the court’s lengthy opinion and considering our options.”

The plaintiffs’ attorneys had characterized 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 now, Warner has asked for royalties from anyone who wanted to sing or play “Happy Birthday to You” — with the lyrics — as part of a profit-making enterprise. Royalties were most often collected from stage productions, television shows, movies or greeting cards. But even those who wanted to sing the song publicly as part of a business, say a restaurant owner giving out free birthday cake to patrons, technically had to pay to use the song, prompting creative renditions at chain eateries trying to avoid paying royalties.

The fact that the birthday tune can’t be played or sung without permission from Warner has been little more than a surprising piece of trivia for most, but for Warner Music Group, it has meant big business. Two of the filmmaker plaintiffs paid $1,500 and $3,000 for the rights to use the song, their attorneys said. Filmmaker Steve James paid Warner $5,000 to use the song in his 1994 documentary “Hoop Dreams.”

“It was quite expensive for us at that time and with our budget. And we only used it for 9 seconds,” James wrote in an email passed along by his publicist. James said the scene was “essential” to the film and ultimately decided to pay up.

At a March hearing in the case, records show, a Warner/Chappell representative seated in the audience told the judge that the company collects as much as “six figures” for certain single uses of the song. The song brings in about $2 million a year in royalties for Warner, according to some estimates.

(…)

Tuesday’s ruling means that the song is now considered a public work and is free for everyone to use without fear of having to pay for it, according to a statement from the plaintiffs’ attorneys.

Jennifer Nelson, one of the filmmaker plaintiffs and owner of Good Morning to You productions, called the decision a “great victory for musicians, artists and people around the world who have waited decades for this.”

Robert Brauneis, a George Washington University law professor who has extensively researched the copyright history of the song, says the ruling does not explicitly place “Happy Birthday To You” in the public domain.

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“It does leave open some questions,” Brauneis said Tuesday night. “If [the Hill sisters] didn’t convey the rights to Summy Co., then is there someone else that might still own them?”

With Mildred Hill dead for nearly a century now, Brauneis said, “Figuring out who owned [the rights] at this point would be quite an interesting job.”

This ruling is the latest development in a legal dispute that has gone on for years now, and may well mark the beginning of some sanity in the area of copyright laws at least when it comes to the protections given to works that were created long ago. As I noted when I wrote about the first version of this lawsuit three years ago, despite the fact that “Happy Birthday To You” is one of the most ubiquitous songs around, it is one that you seldom here outside of private settings because of the alleged copyright. Restaurants don’t allow their wait staff to sing it for customers who are celebrating a birthday. It’s rarely heard in movies even when a birthday is a part of the plot, and when it is heard it’s because the producers have paid Warner/Chappell royalties that have apparently earned them $2,000,000 or more per year for quite a long period of time, quite a substantial sum for a song that can trace its roots back more than a century. As the Plaintiffs alleged in their suit, though, it was clear that whatever rights existed in the song had expired long ago:

When the Hill sisters first composed the song in 1893, it was called “Good Morning to All.” Somewhere along the line the tune evolved into the version that is currently popular. The song has traditionally been regarded as copyrighted because the lyrics appeared in a songbook in 1924 and a piano arrangement was published in 1935. As such, it would neatly fit into changes in copyright law that conferred a lengthy 95 years of protection for works created after 1923. Had the songbook been published any earlier, there wouldn’t be any question  as to whether a license fee was needed when, for example, Marilyn Monroe sang it to John F. Kennedy in 1962.

Now, the documentary film company says it has “irrefutable documentary evidence, some dating back to 1893, [which] shows that the copyright to ‘Happy Birthday,’ if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to ‘Happy Birthday,’ those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935.”

The lawsuit says that in 1893, the Hill sisters sold and assigned their rights to a written manuscript that included the hit song to Clayton Summy in exchange for 10 percent of retail sales. That year, “Good Morning to All” is said to have been published in a songbook titled Song Stories for the Kindergarten, and a copyright application was filed the next year. In the following years, there would be more publications of this initial song and more copyright registrations.

Then, the lawsuit states, “Even though the lyrics to ‘Happy Birthday to You’  and the song ‘Happy Birthday to You’ had not been fixed in a tangible medium of expression, the public began singing ‘Happy Birthday to You’ no later than the early 1900s.”

The song, and the legal issues surrounding it, were also the subject of a research paper by George Washington University Law School Professor Robert Brauneis called Copyright and the World’s Most Popular Song.

Judge King largely accepted the Plaintiff’s version of the facts behind the history of the song, and the result of that is holding that, under the law that existed at the time, whatever copyright would have existed to the song expired long before the subsequent owner attempted to renew it and that the only thing covered under that 1935 copyright was the specific piano arrangement published back then. At least in theory, this means that every dime paid to Warner/Chappell or any of its predecessors in interest was paid illegimately. Potentially, this could amount to tens of millions of dollars. The next step of proceedings in this case would be for the Court to determine whether the Defendants must repay all or a portion of the license fees that they’ve collected. The Defendants could seek to appeal the Court’s ruling here, but they would need to seek permission from the Judge to file an interlocutory appeal to do so. Additionally, the fact that the Judge’s ruling here is based largely on his interpretation of the facts of the case means that it is unlikely that his ruling will be overturned on appeal. By the time this case is over, then, Warner/Chapell and the other Defendants could end up owing a lot of people a lot of money.

The case of ‘Happy Birthday To You,” of course, is just one example of what’s wrong with Intellectual Property Law on many levels in the United States. Had this case not gone forward, then the copyright in this song would have lasted until at least 2030, some 128 years after the song was written. Whatever one might think about the propriety of copyright laws to begin with, it seems rather clear that when the Founders granted Congress the right to grant protections for “science and the useful arts,” they did not intend to grant what would essentially become perpetual exclusive rights that would allow creators and their heirs to continue extracting licenses fees for generations. Instead, the purpose of these laws was supposed to be to encourage invention and creativity by granting creators some limited period of exclusive use of their creations that would allow them to recoup the costs and efforts that were put into their creations. Thanks largely to the fact copyrights, and especially patents, have come to be dominated by a small group of well-financed special interests who are able to lobby Congress to extent copyrights far beyond their originally intended periods, though, that original purpose has been lost. This court ruling is only a small victory against the fight against copyright abuse, but it is a victory and hopefully it will lead to change in the future.

Here’s the decision:

Rupa Mara Et Al v. Warner-Chappell Music Et Al by Doug Mataconis

FILED UNDER: Economics and Business, Law and the Courts
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Franklin says:

    Are those rent-seeking a-holes going to pay back all the money they’ve collected?

  2. grumpy realist says:

    @Franklin: At least one group is trying to get together a class-action suit concerning the matter.

  3. C. Clavin says:
  4. Electroman says:

    The sentence “Stunning photos, celebrity homes: Get the free weekly Hot Property newsletter” is in the text here, and I’m betting that it is due to hasty copy-paste.

    That being said, Yippee! Happy unbirthday to me.

  5. walt moffett says:

    One battle won, a long campaign is still ahead. Lets see what happens when this hits the Supreme Court, Congress, etc.

  6. the Q says:

    Adam Smith was wholly against copyrights, trademarks etc because he said all invention should be improved upon and these laws impeded human progress.

    I would posit to my capitalist friends, “what if the first guy who invented the wheel was able to enforce a patent on this invention and because he had sole power over who got to use it civilisation was held up for a thousand years? How is that economically efficient? Or, say the first guy who figured out fire from friction? And he alone doled out who got to use this method of starting a fire and that held back society for a thousand years?

  7. Argon says:

    Next step, a ban on the song “It’s a Small World After All”.

    I heard that during a single ride at Disney Land and more than forty years later still can’t get that $%#%#!!! tune out of my head.

  8. Franklin says:

    @Electroman: Oh, is it *your* unbirthday, too?

  9. bill says:

    gee, i was getting used to the version that all the chain restaurants use…..said nobody ever.