Business News Labels & Publishers Legal

No Happy Birthday decision after new “smoking gun” evidence submitted

By | Published on Friday 31 July 2015


The judge overseeing the ‘Happy Birthday’ copyright dispute has pushed back any decision making for at least another week.

As previously reported, a film company behind a documentary on the famous song claims that, in the US at least, ‘Happy Birthday’ should no longer have copyright protection, because the copyright in it originates from before a 1923 change in American copyright rules. Under the pre-1923 rules the song is already ‘public domain’, ie out of copyright.

The song’s publisher Warner/Chappell, however, insists that while the song may have existed before 1923, it was never formally published. It links publication to a 1935 copyright registration, which falls well after the 1923 rule change, and thus means the song is still a protected work.

Both sides submitted their arguments a while back, and a judge was due this week to consider whether he should make a summary judgement one way or the other, or let the whole thing proceed to trial. Until this week, the plaintiffs’ main argument was that Patty Smith Hill and Mildred Hill, the sisters who wrote some or all of the song, had “surrendered the copyright to the public” prior to the 1935 registration, rendering that registration redundant.

But then the plaintiffs arrived this week with a last minute bit of new evidence, a song book from 1922 that contained the song. That meant, the plaintiffs argued, that ‘Happy Birthday’ was definitely published before the all important 1923 rule change. Except, countered Warner/Chappell, not if the song had been published in 1922 without permission. A matter that would surely need a trial to be worked out.

Having taken submissions from both parties, a judge in the California federal court considered the ‘they surrendered the copyright’ argument on Wednesday, but held off reviewing the new evidence, giving the two parties another week to prepare refreshed arguments taking the 1922 songbook into account.

And so, no resolution as yet, and no new court hearing currently scheduled. The judge could as yet make a summary judgement on the final set of submissions from each party, or could let the whole matter proceed to court. If the latter, I vote Robin Thicke is brought in to play ‘Happy Birthday’ on the piano. You know, just to set the scene.