On June 30th, Judge George King of the Central District of California entered the Final Order and Judgment in the matter of Good Morning to You Productions Corp. et al. v. Warner/Chappell Music, Inc. – the Happy Birthday class action. Only the amount of attorneys’ fees to be awarded to the plaintiffs’ attorneys remains, and must be decided for many of the settlement terms to become effective. Nonetheless, it is not too early to consider what, if any, effects this case will have on the field of intellectual property.
Don’t Assume An Unbroken Chain of Title
The Court found Warner/Chappell’s chain of title defective because its predecessor-in-interest Summy Co. never actually obtained title in the lyrics. Warner/Chappell pointed to evidence of a written agreement between Mildred and Patty Hill (the sisters who wrote the song) and Summy Co., but that agreement only transferred title to a particular piano arrangement of the song. It was already undisputed that the music for Happy Birthday to You had entered the public domain. The parties in the case fought over the copyright ownership of the lyrics. Because, as the Court observed, “pianos do not sing,” the agreement did not cover the lyrics but only covered the music.
Practitioners take note! Double check the chain of title in any copyright works you own or plan to buy. Just because no one has challenged the chain of title does not mean it cannot be challenged.
The Copyright Registration Matters
A keystone of Warner/Chappell’s defense was that certain copyright registrations from 1935, filed by the Hill sisters’ publisher, Summy Co., covered the lyrics. The registrations, however, were rather clearly for specific piano arrangements of the song. They did not list either Hill sister as an author and were even ambiguous about what text was included. Warner/Chappell argued that these “mistakes” were irrelevant and did not change the evidentiary presumption that Summy Co. had a valid copyright in the entire Happy Birthday song, lyrics and all. This was a fairly reasonable stance, supported by an arguably broad reading of some case law. See, e.g., Nat’l Broad. Co. v. Sonneborn, (application errors including the mistaken claims that NBC was the author of the “entire work” and that the work was a “work for hire” did not invalidate copyright) (cited by Defendants in the Cross-Motion for Summary Judgment).
The court, however, disagreed. It distinguished between the tenet that mistakes in the registration do not invalidate the registration, and the true issue at hand: What evidentiary presumptions arise from a copyright registration? Because of the “mistakes” in the copyright registrations, the court refused to presume any facts that were not on the face of the registration, including that Patty Hill wrote the lyrics or that Summy Co. had any rights to the lyrics at the time of the registration.
For practitioners, the lesson should be clear: Take care that your copyright registration is correct, or you will lose important evidentiary presumptions.
Copyright Owners Bear the Burden of Proof in a Declaratory Relief Action
Warner Chappell argued that, because it was the defendant, the class action plaintiffs bore the burden of proof. The Court on summary judgment found that Warner Chappell had the burden of proof because it claimed to be the owner of the copyright. The fact that Warner Chappell was nominally the defendant in a declaratory relief action was not a sufficient reason to relieve it of the burden of proof that a copyright owner normally faces in a standard infringement action.
If you are a copyright owner, don’t assume that you will not bear the burden of proof, even if you don’t sue. That means that, on a summary judgment motion, a party challenging the copyright can simply present some evidence negating the copyright owner’s claim, and then the burden will shift to the copyright owner to refute that showing.
Did the Case Merely Apply a Copyright Act That No Longer Applies?
The case has garnered significant international media attention, even landing the plaintiffs’ lawyers on TMZ when they sang the song on the courthouse steps with class representative Rupa Marya. Why, then, has there not been more academic commentary on this case?
Perhaps the answer lies in the age of the song, which was written so long ago that it preceded even the seemingly ancient Copyright Act of 1909. Congress substantially changed copyright law when it passed the Copyright Act of 1976, which eliminated many of the formalities previously required under the 1909 Act. Most copyrightable content that has current value has been created since 1977, which limits the universal applicability of a case focused on the 1909 Act.
Perhaps more importantly, the case settled. Warner/Chappell agreed not only to repay past royalties, but also to forego the additional fourteen years of royalties it expected to collect. Without trial, so many of the interesting IP issues presented by the case will never be decided.
Mildred and Patty Hill published “Good Morning to All” in 1893 – the famous melody, but with other lyrics. The famous lyrics appeared as early as 1901 in songbooks, but with no clear attribution of authorship of those lyrics to Mildred or Patty Hill. Given that the melody is in the public domain, are the simple lyrics, Happy Birthday to You, repeated three times, original enough to warrant copyright protection under the Ninth Circuit’s heightened standard of originality for derivative works? These questions, and many others, remain open.
It will be interesting to see whether this case leads to an increase in copyright class actions for songs created under the 1909 Copyright Act. There have already been class actions filed for other older songs, such as “This Land Is Your Land” and “We Shall Overcome.” This case may have lawyers searching through old library catalogs researching the ownership of songs written long ago whose popularity, and royalty revenue, endures.
A Big Win for the Public and the Public Domain
Much of the modern advocacy for the public domain comes from (and, in the authors’ view, is tainted by) the extreme position that all information should be free. The argument is often framed as one in which modern technologists square off against an antiquated copyright law and antiquated rights holders, such as record labels and large publishers. Artists are often the forgotten stakeholder in the fights over Napster, YouTube, and other modern hotbeds of unauthorized copying.
The Happy Birthday case, however, put artists back in the forefront, as plaintiffs in the action, advocating for the public domain. The lead plaintiffs were a musician and three filmmakers.
The class itself consisted of artistic creators, from musicians to film studios to documentary filmmakers. These are artists that wanted to use the song to create new works, to, in the words of the Copyright Clause of the Constitution, “promote the Progress of Science and the useful Arts[.]”
The case garnered extensive media attention, and there was an incredulousness shared by so many ordinary people that anyone could still claim the copyright to the song Happy Birthday to You in 2016. With the world’s most popular song freed from copyright restriction, we expect a proliferation of the song in all manner of music, television shows, and films. Popular support for the outcome of the case, both in its legal conclusion that the song is in the public domain and the practical outcome of an increased use of the song in new artistic expression, may engender a positive reassessment of the public domain. This, in turn, could lend popular support to common sense copyright reform that supports artists and their art.