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Warner/Chappell begins Happy Birthday fightback

By Chris Cooke | Published on Friday 16 October 2015

Warner/Chappell has kicked off its fight-back in the big ‘Happy Birthday’ copyright case in the US, after a judge ruled last month that ownership in the famous song’s lyrics never transferred to Summy Co, the publisher Warner acquired in the 1980s.

As previously reported, there were various strands to the legal battle instigated when a film company sued Warner/Chappell claiming that ‘Happy Birthday’ was ‘public domain’ in the US, which would mean copyright in the song had expired and the major publisher had no right to collect royalties when it was performed or recorded.

The case centred on the lyrics, with the plaintiffs arguing that: the Hill sisters, who wrote the melody and the song’s original words, which went “good morning to you”, didn’t pen the more famous lyrics; or if they did they at some point abandoned the copyright in them; or if they didn’t, they never transferred ownership of those specific words to Summy.

With both sides in the dispute seeking a summary judgement in their favour, judge George H King said the first two arguments needed a full court hearing, but on the latter point he ruled in favour of the plaintiffs. It was a ruling that suggested – though not conclusively – that ‘Happy Birthday’ was, indeed, public domain Stateside. But more importantly, it was a ruling that meant that, whatever the copyright status of ‘Happy Birthday’ – in Europe it’s in copyright until the end of next year either way – Warner doesn’t control the words.

However, the matter is far from resolved. On the plaintiff’s side, they want formal confirmation from the courts that ‘Happy Birthday’ is fully public domain in the US (the melody already is there). They want the issues not resolved in King’s summary judgement given the court time he said they needed. And they want to know what the courts are going to do about all the money Warner/Chappell has been charging for the use of ‘Happy Birthday’ since it thought it acquired the rights in the 1980s.

On its side, Warner/Chappell has begun the appeals process. According to The Hollywood Reporter, in a legal filing yesterday the publisher asked that King reconsider his own judgement, while also requesting permission to take the matter to an appeals court. The publisher raises a number of questions about King’s thought processes in relation to each element of the dispute, including on the crucial issue over whether or not ownership in the lyrics transferred. In particular, they disagree with King’s interpretation of a 1940s agreement between Summy and the Hill sisters.

It seems unlikely that King will go back on his judgement though, given the time he invested in reaching it, and the detail with which he explained his conclusions. But Warner has various routes of appeal and will almost certainly pursue them all. And even if it does ultimately lose the ownership argument, there would then be a second round of legal debates that could mitigate any repayments of the monies that the publisher has previously earned in relation to the song.

So, as we expected, last month’s headline-grabbing judgement was just the end of one chapter in a longer story. And now the next chapter has begun.