‘Happy Birthday to You’ Copyright Challenged in Class Action

By Steve Brachmann
August 5, 2014

By many accounts, “Happy Birthday to You” is the most popular and well-known song in the English language and has been so for years. This is a reality that has been very lucrative for Warner/Chappell Music, Inc., the company which has been enforcing a copyright on the song since its acquisition of Birch Tree Ltd. in 1998. That purchase brought with it six copyrights registered with the U.S. Copyright Office which protect musical arrangements for that song.

These copyright protections generate about $2 million in revenue every year for Warner/Chappell, making them very lucrative copyright holdings. The company enforces the copyright against film and entertainment productions of all kinds, exacting a thousand dollars or so from groups that often don’t have the resources to stake the large legal battle that would ensue by refusing to pay and incurring the possible $150,000 penalty that could be applicable under the terms of the Copyright Act of 1976.

However, one production company has decided to take this battle to the courts in the hopes of overturning what it feels are misappropriated copyright protections. If the court decides in favor of the plaintiff, Warner/Chappell could be ordered to return all copyright licensing fees it has collected for the past three years.

There has been much doubt among copyright scholars in recent years over the validity of the copyright holdings enforced by Warner/Chappell which are relevant to the “Happy Birthday to You” claims. A 2010 paper written by George Washington University Law School professor Robert Brauneis (link found above) argued that defective copyright notice, failure to file proper renewal applications as well as a lack of evidence of authorship all rendered the copyright void.

In June 2013, a class action lawsuit was brought forth by Good Morning To You Productions Corp. against Warner/Chappell to declare the copyright invalid and enforce Warner/Chappell to return millions of dollars, which it has collected in licensing fees for the song. The company was shooting a documentary titled Happy Birthday about the song when Warner/Chappell sent a message to Jennifer Nelson, the film’s creator, that she would have to pay $1,500 and enter into a licensing agreement to use the song.

 

“Happy Birthday” History

The subsequent lawsuit filed in the U.S. District Court for the Southern District of New York lays out an incredibly thorough history of the song, establishing multiple points on which the validity of the copyright might be overruled. In the eyes of the plaintiff, irrefutable evidence points to the expiration of the copyright in 1921, and that any copyright protections owned by Warner/Chappell are narrowly directed towards the reproduction and distribution of piano arrangements:

“More than 120 years after the melody to which the simple lyrics of Happy Birthday to You is set was first published, defendant Warner/Chappell boldly, but wrongfully and unlawfully, insists that it owns the copyright to Happy Birthday to You, and with that copyright the exclusive right to authorize the song’s reproduction, distribution, and public performances pursuant to federal copyright law. Defendant Warner/Chappell has either silenced those wishing to record or perform Happy Birthday to You or has extracted millions of dollars in unlawful licensing fees from those unwilling or unable to challenge its ownership claims.”

The evidenced entered into the case by Good Morning To You Productions dates back to 1893, when a manuscript containing 73 songs was sold by sisters Mildred J. and Patty Smith Hill to publisher Clayton F. Summy. One of those songs was titled “Good Morning to All,” which contains the original melody for the song that became “Happy Birthday to You.” Within the year, Summy published Song Stories for the Kindergarten, which included “Good Morning to All,” and in October 1893, Summy obtained copyright protection as the proprietor, but not as the author, of the collection of songs.

The lyrics for “Happy Birthday to You” are not included in the original publication for which Summy obtained copyright protection. However, it deserves to be noted that, not only was the melody for the song established in “Good Morning to All,” the original lyrics are similar to the version that is widely known today:

“Good morning to you
Good morning to you
Good morning dear children
Good morning to you.”

In 1899, Summy again published a collection of songs which included “Good Morning to All,” this collection entitled Song Stories for the Sunday School. The title page of this book, referenced in the plantiff’s claim, attributes authorship of the songs to the Hill sisters, and establishes Summy as the copyright owner. Again, the lyrics for “Happy Birthday to You” had not been published, but the plaintiff also cites articles published in the early 1900s which report schoolchildren singing a “happy birthday to you” song, although lyrics or melody aren’t given.

The first publication of the words for “Happy Birthday to You” doesn’t come about until 1911, when the Board of Sunday Schools of the Methodist Episcopal Church published The Elementary Worker and His Work. The text includes the lyrics to the song as we know it today, as well as instructions to sing the song to the tune of “Good Morning to You.” As the plaintiff stresses in the complaint, it’s noteworthy that this publication established no authorship for “Happy Birthday to You,” even though authors and copyright owners for other works involved in The Elementary Worker and His Work were identified.

About a decade later, in 1921, another event important to the history of this case occurred. In October of that year, the original copyright for Song Stories for the Kindergarten expired. Clayton Summy’s corporation had dissolved the previous year under the terms of its incorporation, and he did not decide to renew his copyright for this work. As a result, the contents of Song Stories for the Kindergarten, including “Good Morning to All,” should have entered the public domain.

The story of “Happy Birthday to You” resumes a couple of years later, in 1924, when Robert H. Coleman compiles and publishes Harvest Hymns. This songbook is believed to be the first time that the lyrics and melody of “Happy Birthday to You” were published together. Interestingly, much like The Elementary Worker and His Work, Coleman attributed no authorship to this song, even though authorship and copyright information was published for other work in Harvest Hymns. This happens again in a 1928 publication for another collection of songs, titled Children’s Praise and Worship, which was published by the Sunday School Board of the Southern Baptist Convention.

The Summy name returns to the story in 1934, although not under the direction of Clayton F. Summy. In that year, Jessica Hill, sister to Mildred and Patty Hill, sold and assigned rights for certain piano arrangements of Good Morning to All to Summy Co. III, a company owned by John F. Sengstack; Sengstack had bought Summy Co. II from Clayton F. in 1930 and then incorporated Summy Co. III in August 1931. The sale followed Jessica Hill’s lawsuit against Sam Harris, producer of the Irving Berlin musical As Thousands Cheer, for the use of Happy Birthday to You in public performances.

Between December 1934 and December 1935, Summy Co. III filed six Applications for Copyright for Republished Musical Composition with New Copyright Matter. Various applications claimed copyrights for matter including an “arrangement for easy piano solo, with text,” an “arrangement for Unison Chorus and revised text,” an “arrangement for six hands at one piano” and an “arrangement by piano solo.” In each case, the plaintiff argued that the majority of the copyright’s scope was invalid, except where it pertained to the particular sheet music arrangement submitted in each application. Although the lyrics to “Happy Birthday to You” do appear in some of the copyrighted material, none of the authorship was properly attributed to the Hill Sisters and did not claim rights to the lyrics alone or the combination with the melody of “Good Morning to All.”

Summy Co. III began granting licensing rights through the American Society of Composers, Authors and Publishers (ASCAP) for public performances of “Happy Birthday to You” in February 1938. The only major legal battle cited in the case background since that time seems to be a 1942 lawsuit brought by The Hill Foundation for an accounting of royalties earned by Summy Co. III for licensing “Happy Birthday to You.” The Hill Foundation did not assert a copyright claim to the “Happy Birthday to You” lyrics, allowing Summy to continue enforcing those rights. Summy Co. III renewed its copyright registrations in 1962, and was renamed Birch Tree Ltd. at some point during the 1970s.

 

Progress on the Case

Warner/Chappell stakes its claim to the “Happy Birthday to You” royalties based on the Summy copyright registrations filed with the U.S. Copyright Office in 1935 and renewed in 1962. As our explanation of U.S. copyright code pursuant to the Copyright Act of 1962, and later amendments, indicates, the copyright protections would be the property of Warner/Chappell for a maximum of 95 years, with an approximate expiration date of 2030.

Contrary to reports published by other online news outlets, Warner/Chappell would not be on the hook for “hundreds of millions” in repayments of wrongfully collected licensing fees. The statute of limitations for a claim such as the one brought forth by Good Morning To You Productions is three years; if estimates on the song’s licensing revenue cited above are correct, Warner/Chappell might owe around $6 million. The statute of limitations was upheld early on in the case when two of the plaintiffs in the class action lawsuit were dismissed because allegations by Robert Siegel and Majar Productions LLC did not fall within the statute of limitations’ timeframe.

Although the suit filed in the Southern District of New York was voluntarily dropped soon after it was filed, the case continues in the U.S. District Court for the Central District of California. Most recently, attorneys for Warner/Chappell argued that 1976 and 1978 correspondence between attorneys for Summy-Birchard Co., the incarnation of the company claiming the copyrights at the time, and ASCAP is protected by attorney-client privilege and cannot be released to the plaintiffs. The letters are believed to contain information related to the history and status of the copyrights in question.

It’s tough to tell whether this courtroom matter will overturn the copyrights held by Warner/Chappell. Although the plaintiffs bring forth plenty of evidence to support their claims, the early court decisions to throw out plaintiffs and block correspondence from discovery may tilt the playing field away from Good Morning To You Productions. In any event, this is the most impassioned attack to date on a copyright which many have bemoaned for years as possibly invalid, and the resulting decision may put to rest a fairly controversial topic in the world of U.S. copyright.

 

The Author

Steve Brachmann

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

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