A Very Merry Unbirthday to Warner Music Group

Ever wondered why restaurants insist on doing weird clapping cheers instead of just singing Happy Birthday To You? It’s because, for the past eighty years or so, various copyright owners have jealously protected the song, demanding licensing fees for its commercial use. In 1988, Warner/Chappell (Warner) acquired the copyright and makes about $2 million annually in royalties from it. Or at least they used to. Earlier this week, on cross-motions for summary judgment, the Honorable George H. King, of the Central District of California, ruled that Warner acquired the rights only to specific piano arrangements of the Happy Birthday To You melody, and thus does not own a valid copyright in its lyrics.

Before getting into this, it is important to know that songs can have anywhere from one to three or more separate copyrights attached to them. The first copyright is in the musical composition itself, e.g., the notes, melody, and arrangement; the second copyright is in the lyrics, if there are any; and any other copyrights come from the individual performances of the song. The Happy Birthday suit is about the lyrics, or words to the song, because the composition is already in the public domain and no specific performances are at issue.

History of Happy Birthday

For a song so ingrained in the American consciousness, many find it surprising that Happy Birthday To You (Happy Birthday) is not already in the public domain. Public domain works are those compositions dedicated to the public so as not to be subject to copyright, or those works whose copyright protection terms have expired and now belong to the public, for example, Francis Scott Key’s The Star Spangled Banner is in the public domain. In fact, Happy Birthday shares its melody with the song Good Morning to All (Good Morning), written by sisters Mildred and Patty Hill in 1893. That same year, the sisters assigned their rights in Good Morning to Mr. Clayton F. Summy who filed for federal copyright and published it in a songbook. Copyright protection for the songbook and Good Morning expired in 1949, thus the melody for Happy Birthday is in the public domain.

Happy Birthday to you/ You Belong in a Zoo. . .

A 1922 copy of “The Everyday Song Book,” containing lyrics to “Happy Birthday.” – Courtesy of Christine Mai-Duc / Los Angeles Times

Happy Birthday’s lyrics, on the other hand, have a more tangled history. The lyrics to Happy Birthday were not in Mr. Summy’s songbook, and the first reference to them is from a 1901 article, which did not reproduce the lyrics. It was not until 1911 that the lyrics appeared in a songbook. However, the book did not credit the lyrics to anybody, merely mentioning it shared its tune with Good Morning. Then, in 1935, the Clayton F. Summy Company (Summy Co.), registered copyrights in two works titled Happy Birthday to You, E51988 and E51990. Warner claims that E51990 secured a federal copyright in the Happy Birthday lyrics, and that it acquired rights to Happy Birthday through this registration when it purchased Birch Tree Group, Summy Co.’s successor company in 1988.

The 1942 Lawsuit

Because Good Morning was composed in the 1890s and Happy Birthday as we know it has been around since at least 1911, original documents (or copies) dealing with assignments, registrations, and licenses have been few and far between. Thus, much of the information given to the court comes from a lawsuit filed in 1942 by the Hill Foundation against Summy Company. Patty and Jessica Hill, Jessica having inherited rights from Mildred, formed the Hill Foundation. Essentially, The Hill Foundation alleged that Summy Co. granted licenses to movie and play producers without the Hill sisters’ authorization. And in addition to the Good Morning agreement, there was a second agreement where Jessica Hill granted Summy Co. licenses for “piano arrangements of the song variously entitled ‘GOOD MORNING TO ALL’ or ‘HAPPY BIRTHDAY TO YOU.’” Summy Co.’s answer admitted that the Second Agreement “assigned various piano arrangements of ‘Good Morning to All’” to Summy Co. (punctuation omitted).

The suit settled in 1944 with the creation of a new agreement. In this third agreement, the Hill Foundation assigned to Summy Co. all rights in eleven different copyrights, including E51990. Afterwards, Summy Co. filed three lawsuits alleging copyright infringement related to Happy Birthday, none of which involved E51990. In fact, for all three complaints, Happy Birthday is only mentioned in the following way, “[o]ne of the songs in [the songbook], entitled ‘Good Morning to All’, later became popularly known as ‘Happy Birthday to You’, the opening lines of the verses later written by Patty S. Hill for the song.” None of the lawsuits asserted infringement in the lyrics of E51990.

The 2015 Lawsuit

The plaintiffs are trying to get this suit certified as a class action, and Rupa Marya, the would-be class representative certainly has standing. A class action is a suit brought by one or more plaintiffs on behalf of a large group of people, who may or may not decide to opt into the suit. The policy behind class actions is that an individual harm may not warrant the cost of a lawsuit, but the aggregate of all the harm done to the entire class of people does. The class representative represents the interests of all the class members, and must “adequately and fairly represent the class.” In 2014, Marya had to pay a $455 licensing fee to make and sell 5,000 copies of an album that included a live performance of Happy Birthday to You. Now, Marya and the rest of the plaintiffs have presented several arguments as to why Warner does not hold legitimate rights in the song, and particularly its lyrics.

The judge’s ruling comes from cross-motions for summary judgment. Normally in summary judgment actions, the moving party bears the burden of showing that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Put simply, the party asking for summary judgment has to prove that factually and legally, there is no question as to how the court should rule. However, in this case the plaintiffs asked for a declaratory judgment that Warner did not have a valid copyright. Normally, declaratory judgment actions place the burden of proof on the asking party, but there is an “exception to the basic rule.” Where a party seeks a declaratory judgment in the shadow of a threatened infringement suit, then the burden of proof switches to the party owning the allegedly invalid copyright. So, in this suit, Warner had to prove that they owned a valid copyright in the Happy Birthday lyrics, rather than the plaintiffs needing to demonstrate it was invalid.

Normally, a copyright registration gives a presumption of validity in the claimed copyright, shifting the burden to the opposing party to prove the copyright’s invalidity. In this case, only the registration certificate was available, and the “deposit copy” which shows what the work is, was missing. Regardless, there were some issues in Warner’s argument that E51990’s claimed registration of the Happy Birthday lyrics.  The E51990 registration was granted in 1935 as a derivative work, its author listed as Preston Ware Orem employed for hire by Summy Co. And although the title of E51990 was listed as Happy Birthday to You, the new subject matter claimed on the registration certificate was “Arrangement as easy piano solo, with text.”

Warner tried to claim this entitled them to a presumption of validity in the copyright for the lyrics, but the Court didn’t buy it. Even if the lyrics were part of the deposit copy, the Court reasoned, the only “new matter” covered in the derivative work copyright was the piano arrangement, as the lyrics existed as far back as 1911, possibly under common law copyright. Furthermore, Preston Orem is not the author of the Happy Birthday melody, and nobody claimed he wrote the famous lyrics. A material mistake in registration will rebut or void the presumption of validity for a given copyright.  Thus, Warner maintained the burden throughout of proving the validity of their claimed copyright in the Happy Birthday lyrics.

The Court found a genuine issue of material fact as to who authored the Happy Birthday lyrics. Warner claimed it was Patty Hill, but the plaintiffs’ argued that it could have been someone else based on the lack of registration crediting Ms. Hill and the various publications of the lyrics without crediting anybody. Warner tried to use a 1935 deposition of Ms. Hill where she claimed credit for the lyrics, but the Court found a public declaration forty-years after the song became popular merely created a triable issue, rather than an indisputable fact. Several other arguments were presented to the court, including Authorship of the Lyrics, Abandonment of the Lyrics, Divestive Publication of the Lyrics, and Joint Authorship of the Lyrics, to overcome alleged abandonment, all of which created genuine issues of material fact for trial.

However, on the issue of Transfer of the Happy Birthday lyrics, the plaintiffs prevailed. Based on the documents from the 1942 lawsuit, the Court found that none of the agreements or transfers, including E51990, explicitly concerned the famous Happy Birthday lyrics, although several were for piano arrangements of the song. Because the agreement contained no discussion of the lyrics, and no evidence anywhere in the record that the Hill sisters had given Summy Co. authorization to publish and register the lyrics, Warner was unable to show that there had ever been any transfer of the words to Happy Birthday. The Hill sisters never fought to protect the Happy Birthday lyrics, and never tried to obtain a federal copyright for them.

Happy Birthday may Not Be in the Public Domain

Now, although the Court clearly found that Warner does not own a valid copyright in the Happy Birthday lyrics, this does not necessarily mean that Happy Birthday is in the public domain. If the lyrics were published after 1923 there could still be a valid copyright. And it is possible that someone else will come forward and claim the rights to those lyrics. So, as it stands, the Happy Birthday lyrics are an orphan work. Orphan works are works that are still protected by copyright, but for which the copyright holders cannot be found in order to obtain permission to use them. This means that if someone uses Happy Birthday commercially and a new owner comes forward, they could still be liable for copyright infringement. However, it does seem unlikely that a new rights owner will suddenly materialize considering the age of the lyrics. Furthermore, most news organizations are treating this ruling as putting the song into the public domain, so it is possible that the entertainment industry will do the same. This author, for one, will certainly miss the creative work-arounds Warner’s licensing scheme inspired, but knows a classic when she hears one.

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