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Plaintiffs present “smoking gun” in Happy Birthday case

By | Published on Tuesday 28 July 2015


So, we have a smoking gun. Well, there’s smoke. Perhaps someone just put too many candles on the birthday cake. Because yes, it’s the ‘Happy Birthday To You’ copyright case.

And lawyers for the film company suing Warner/Chappell, owner of the ‘Happy Birthday’ copyright, say they have discovered a “proverbial smoking gun” that proves the song is out of copyright in the US, so that movie makers and such like should not have to pay any royalties for using the popular song.

As previously reported, a film company which made a documentary about the famous ditty – and which needed a licence to include the song in the film – filed litigation in the US arguing that, actually, the work is no longer protected by copyright in America, even though the Warner music publisher continues to control its use.

Whereas in Europe, the copyright in ‘Happy Birthday’ will expire at the end of next year, 70 years after the death of Patty Smith Hill, who wrote the song with her sister Mildred Hill, in the US the term of the copyright is more complicated, because of American copyright rules in the early 20th century, and the fact that those rules changed in 1923.

Warner/Chappell’s claim to the copyright in ‘Happy Birthday’ relates to copyright registrations that occurred in 1924 and especially 1935. But film company Good Morning To You Productions Corp reckons that any copyright in the song predates the 1923 rule change, which would mean different regulations applied and the song would, therefore, be out of copyright.

And now lawyers working for the filmmakers say they have found an old songbook that proves their case. The new evidence was presented at the last minute, as the judge was getting ready to rule on the dispute, after attorneys found ‘Happy Birthday’ in the 1927 fifteenth edition of ‘The Everyday Song Book’ among documents actually belonging to Warner/Chappell. They then searched America for earlier editions, and found one at the University Of Pittsburgh dating from 1922, also including the birthday song. Suggesting it had indeed been published before the 1923 change in copyright rules.

According to The Hollywood Reporter, the plaintiffs are urging the judge to consider the new evidence, despite its late submission because, “the documents prove conclusively that the song is in the public domain, thus making it unnecessary for the court to decide the scope or validity of the disputed copyrights, much less whether Patty Hill abandoned any copyright she may have had to the lyrics”.

The next hearing on the dispute is scheduled for tomorrow, and it remains to be seen what impact the new evidence has. It’s commonly reported that Warner/Chappell makes $2 million a year from the ‘Happy Birthday’ copyright, so losing protection in the US would be quite a blow.