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Judge rules Warner/Chappell does not control Happy Birthday

By Chris Cooke | Published on Wednesday 23 September 2015

So, a summary judgement has been granted in the big ‘Happy Birthday’ lawsuit and in something of a bombshell ruling for Warner Music’s publishing division Warner/Chappell, a judge has decided that the major does not control the copyright in the world famous song, even though it’s been collecting royalties from it since 1988.

As previously reported, the spotlight was put on the copyright status of ‘Happy Birthday’ when a film company sued Warner/Chappell in 2013, claiming that it should not have to get a licence from the publisher to use the song because it was, in fact, in the public domain, and no longer protected by copyright. In the legal wranglings that have followed, various arguments have been bounced around and put forward.

Among the issues debated were if and when ‘Happy Birthday’ – and especially the song’s lyrics – were registered with the US Copyright Office; what various publications carrying the song before that registration meant; and which version of early 20th century US copyright law we were meant to be looking at, because that could impact on when the copyright was due to expire (while in Europe the copyright term is simply 70 years after the death of the writer, in America early 20th century works are still on fixed terms from publication).

In the end three distinct arguments were presented in court. All related to the lyrics of ‘Happy Birthday’, because even Warner/Chappell agreed that the basic melody of the song – originally written in the late nineteenth century by sisters Patty and Mildred Hill, with different lyrics under the name ‘Good Morning To You’ – was out of copyright in the US.

A specific arrangement of that melody, registered by music publisher Summy Co in the 1930s, is still in copyright. The big question is whether that registration included the ‘Happy Birthday’ version of the lyrics, which Patty Hill claimed she had written in the years after composing the original song with her sister. There remains much debate on this point.

Plaintiffs in the case ultimately presented three arguments as to why those lyrics were not, in fact, in copyright. Firstly, they questioned whether Patty had actually written the specific ‘Happy Birthday’ lyrics, because they surfaced in a number of places uncredited before the Mill sister claimed they were her lyrics during a deposition as part of a 1935 lawsuit.

Secondly, even if the Hills were responsible for the lyrics, the plaintiffs argued that the sisters had abandoned the copyright in them before Summy Co registered the new arrangement of the song – which may or may not have included the lyrics – in the mid-1930s. This argument is based on various technicalities in American copyright law of the time regarding how creators claimed protection in their work.

The third and, as it turns out, most important argument is that while it is clear that the Hill sisters assigned the copyrights in ‘Good Morning To You’ and the 1930s rearrangements of the melody to Summy Co, evidence is lacking of any deal regarding the ‘Happy Birthday’ lyrics. So even if Patty Hill did write the lyrics, and even if she never abandoned the copyright in them, that copyright never transferred to Summy Co. And Warner/Chappell’s claim to the song stems from its acquisition of that company in the 1980s.

With both sides in the dispute seeking summary judgements in their favour, judge George H King ruled that the first two claims would require full court hearings for the various arguments and evidence to be properly considered.

However, on the final claim – whether or not the copyright in the lyrics to ‘Happy Birthday’ ever transferred to Summy Co – the judge was happy to rule in the plaintiff’s favour. So whatever the copyright status of the lyrics, they never belonged to Summy Co, and therefore never belonged to Warner/Chappell.

The major says that it is now reviewing the ruling, and it will probably appeal. But if the ruling stands, it could be costly for the publisher. Even by Warner/Chappell’s maths, the copyright in ‘Happy Birthday’ is due to expire in Europe at the end of next year, but the company reckons it has exclusive rights to the song in the US until 2030.

There is also the matter of damages for those artists, labels, film companies and so on who have had to pay the publisher for the rights to exploit the song in the past, because the plaintiffs in the case were pursuing a class action meaning the ruling is relevant to others who have previously licensed ‘Happy Birthday’.

A statement from the legal reps representing one of the plaintiffs in the case, Rupa Marya, issued overnight says: “The next step in the case is to determine how much of the millions of dollars in licensing revenue Warner/Chappell Music must refund to the thousands of people who have licensed the song”.

Meanwhile Marya herself told reporters: “I hope we can start reimagining copyright law to do what it’s supposed to do – protect the creations of people who make stuff so that we can continue to make more stuff. This ruling has forever changed the current perversion of copyright which protects corporations’ ability to exploit content and copyright law for their own interest”.

With appeals and damages hearings pending there is still plenty to come in this case, but this initial ruling is nevertheless big news.