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Happy Birthday case arrives in court as summary judgement motions considered

By | Published on Wednesday 25 March 2015


The always interesting ‘Happy Birthday’ legal battle was in court this week, as the judge overseeing the case, George King, considered motions and counter-motions for summary judgement.

As previously reported, a film-maker went legal over possibly the world’s most famous song after making a documentary about its history. Good Morning To You Productions paid $1500 to Warner/Chappell to use the song in its documentary, but says that while researching the film it discovered evidence to suggest the work is actually public domain (in the US at least) and that the Warner publishing company has no right to be collecting royalties every time it is played or sung in a public place, or featured on TV, radio or in the movies.

As we noted when this case first emerged in 2013, the copyright status of ‘Happy Birthday’ is complicated. Most people agree that the song originated in the late nineteenth century with sisters Patty Smith and Mildred Hill, albeit initially with the lyrics ‘Good Morning To You’, though it’s possible that they adapted the tune from an existing piece. But if the Hills were the authors, under European law the copyright will expire 70 years after the death of the longer-living sister, which is the end of next year.

In the US, however, it’s more complicated because of the whims of early 20th century copyright law. Warner/Chappell, which acquired the rights to the song in 1990, claims that copyright protection stems from a 1924 songbook (lyrics) and 1935 piano arrangement (the melody). At that time in America lyrical and musical works enjoyed 95 years of copyright protection from publication (and registration), meaning the music will stay in copyright until 2030.

But, says Good Morning To You Productions, both the music and the lyrics of ‘Happy Birthday’ had been previously published and registered – and, crucially, before changes to American copyright law that were made in 1923 which extended terms. Meaning the song is out of copyright and Warner/Chappell only controls the specific adaptation of the tune published in 1935.

So, fun times. Both sides have since pushed for summary judgement in their favour, and it was the key arguments as expressed in their respective motions that were being aired in court this week. Spinning the dispute as a “David and Goliath case” (you did sense Warner/Chappell initially hoped to procrastinate this dispute away, as big guys sued by little guys sometimes do), Good Morning President Jennifer Nelson said the publisher was collecting royalties for a song that has been public domain for 65 years.

According to Courthouse News, Nelson then suggested that the Warner publisher was good at strong-arming royalties out of people who use ‘Happy Birthday’, but resisted ever going legal because of the ambiguities over the song’s copyright status. After this week’s hearing, Nelson said: “If you don’t pay for the license to the song they will notify you and let you know that you have to pay. They’ve never actually sued anybody but they have strong-armed people into having to pay”.

Warner/Chappell insists that the copyright it controls in ‘Happy Birthday’ properly originates from 1935, giving it another decade and a half of copyright protection in the US.

Asked about how the company made money from the song, the firm’s legal man Scott McDowell told the court, “We’re not talking about little kids’ birthday parties in the back yard”, before adding that public space sing songs were always covered by the ASCAP blanket licence. The real value of the song, therefore, is in sync. Usual sync licences cost between $500 and $1500, said McDowell, though when a movie uses the work, they could be paying a five or even six figure sum.

Having heard all the arguments, King is now considering both sides’ motions. It remains to be seen if he lets the dispute go to court proper, though there’s currently no word on when his decision will be made public.