1709 Blog: for all the copyright community

Wednesday, 23 September 2015

Happy Birthday IS in the public domain

In the USA, a federal judge has found that the song "Happy Birthday To You" is entirely in the public domain. 

U.S. District Judge George H. King held in a summary judgment that the song's original copyright, assigned  Clayton F. Summy, who copyrighted and published them in a book titled "Song Stories for the Kindergarten" is now free of copyright claims. The rights to the song were bought for $15 million in 1988 by music publisher Warner/Chappell Music Inc. Any copyright now only covered specific piano arrangements of the song and not its lyrics. “It now belongs to the public,” Mark Rifkin, a lawyer representing a documentary filmmaker who filed the suit against the publisher told reporters adding "We did exhaustive historical research and none of it showed that the publisher owned anything other than copyrights to four very specific piano arrangements". One of the co-plaintiffs, Ruypa Marya of the music group Ruypa & The April Fishes, also praised the decision as momentous, saying "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."  Marya, said she had paid Warner/Chappell $455 to include the song on a live album during which members of her band and audience sang the song to her the night before her birthday.

The song was said to have been generating $2 million annually for Warner/Chappell

The basic "Happy Birthday" tune, derived from another popular children's song, "Good Morning to All," which was composed by two Kentucky sisters Mildred and Patty Hill in 1889 or 1890, and first published in 1893 by the Summy Co, and then passed on to Warner/Chappell.

King's decision comes in a lawsuit filed two years ago by Good Morning To You Productions Corp., which was working on a documentary film tentatively titled "Happy Birthday." The company challenged the copyright, arguing that the song should be "dedicated to public use and in the public domain."

With the music accepted as public domain, the Plaintiffs advanced three arguments as to why the lyrics were not, in fact, in copyright: 

Firstly, they questioned whether orginial writter Patty Hill had written the specific 'Happy Birthday' lyrics, because of other use of similar lyrics before sister claimed they were Patty's lyrics during a deposition as part of a 1935 lawsuit.

Secondly, even if the Patty Hill had written the lyrics, the plaintiffs argued that the sisters had abandoned the copyright ibefore Summy Co registered the new arrangement of the song - which may or may not have included the lyrics - in the mid-1930s.

The third and most telling argument was 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, there was no evidence of any deal regarding the 'Happy Birthday' lyrics.

The Judge erjected Warner's argument that a copyright entitles them to a presumption of validity with the judge noting that it isn't particularly clear whether the registration included the lyrics. Furthermore, the ruling establishes that rights never properly transferred. "Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics."

The Judge noted "The origins of the lyrics to Happy Birthday ... are less clear"  adding the first known reference to them appeared in a 1901 article in the Inland Educator and Indiana School Journal. The full lyrics themselves, King said, didn't appear in print until 1911.

"Because Summy Co. never acquired the rights to the 'Happy Birthday' lyrics, defendants, as Summy Co.'s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics," King concluded in his 43-page ruling. 

The lawsuit also asked for monetary damages and restitution of more than $5 million in licensing fees it said in 2013 that Warner/Chappell had collected from thousands of people and groups who've paid to use the song over the years. That matter is still pending

"We are looking at the court's lengthy opinion and considering our options," Warner/Chappell said in a statement following Tuesday's ruling.

The judgment can be found here


1 comment:

Anonymous said...

Your title is wrong. The decision is silent on whether Happy Birthday is in the public domain. Instead it merely says that if the work is copyrighted, that copyright is not owned by Warner Chappell. Techdirt has a good blog posting explaining how most news reports are getting the decision wrong.