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Not So Fast – “Happy Birthday To You” May Not Be in the Public Domain

The World’s Most popular Song

You all know the tune, so why do you rarely hear the song Happy Birthday To You in movies and on television? The reason is that from 1988 until yesterday Warner/Chappell Music, Inc. had been demanding royalties on the lyrics to the song. 1988 was the year Warner/Chappell purchased purchased Birchtree Ltd., the purported owner of the copyright in the lyrics, for an estimated $25 million, placing an estimated value on the Happy Birthday To You portion of the purchase at a reported $5 million. Since that time, Warner/Chappell has been collecting a reported $2 million per year in royalties on the lyrics. That all ended on September 22, 2015, when a California U.S. District Judge George H. King ruled that Warner/Chappell was not the owner of the copyright in the lyrics to the world’s most popular song.

What About the Music?

Songwriters are entitled to three separate copyrights on their songs. They can obtain a copyright in the music, the lyrics, and the performance. Each of these elements of a song are protected against infringement independently. For many pop songs, the performance copyright can be the most valuable, and therefore the most lucrative to license. Conversely, for “standards” like Happy Birthday To You where the song is more important than the singer, the license fee on the music and lyrics is more valuable than the license fee on any particular performance of the work.

Sometime prior to 1893, Mildred Hill and her sister, Patty Hill, wrote a song called “Good Morning.” While the lyrics of Good Morning were different than the lyrics of Happy Birthday To You, the music was the same. In 1893 the two sisters assigned the rights in Good Morning to Clayton Summy. That same year, Mr. Summy published Good Morning in a songbook entitled Song Stories for the Kindergarten and registered the copyright therein. A third Hill sister, Jessica, filed for renewal of the copyright to Song Stories for the Kindergarten in 1921 as Mildred Hill’s heir. Under the Copyright Act of 1909, songs could receive copyright protection for two consecutive 28-year terms. The copyright in the music therefore expired in 1949 and the music entered into the public domain.

The Lyrics

Although the music to Good Morning/Happy Birthday To You entered into the public domain in 1949, the lyrics did not. The lyrics to Happy Birthday To You did not appear in Song Stories for the Kindergarten. Instead, the lyrics to Happy Birthday To You do not appear to have been published until 1911, where they appeared in a book entitled The Elementary Worker and His Work. The lyrics were published several more times, but none of the publications, including The Elementary Worker and His Work credited any of the Hill sisters with authoring the lyrics. In 1934, Jessica Hill sued the producers of a work entitled As Thousands Cheer. During a deposition in that case, Patty Hill asserted that she had written the lyrics to Happy Birthday To You around the the same time she wrote Good Morning with her sister Mildred.

In 1935, Clayton F. Summy Company registered a copyright E51990. While the E51990 registration related it some way to Happy Birthday To You it is unclear exactly what that copyright registration covered. In 1942, the Hill foundation, an entity formed by Jessica and Patty Hill, sued Clayton F. Summy Company for licensing the Hill’s works without authorization of the Hill sisters. In 1944, the Hill sisters and Clayton F. Summy Company settled the lawsuit by entering into an agreement assigning to Clayton F. Summy Company various copyrights, including copyright E51990. Warner/Chappell claims to be a successor in interest to this assignment, but there is some dispute as to whether Warner/Chappell can establish a clear chain of title in the copyright from Clayton F. Summy Company to itself.

The Lawsuit

Musician Rupa Marya and filmmaker Robert Siegel set out to make a documentary about the the song “Happy Birthday To You.” While making the movie, Warner/Chappell, a music publishing division of the much larger Warner Music Group, demanded a license fee of $1,500 to use the song in the documentary. Rather than paying the fee, the pair filed a lawsuit against Warner Chappell Music in 2013. Marya/Siegel argued that Patty Hill was not the author of the lyrics to Happy Birthday To You. They argued that there were several publications of the lyrics prior to her first assertion of authorship more than forty years after her purported authorship. U.S. District Judge George H. King held that as a reasonable fact finder could find either way on this issue, a directed verdict on the issue of authorship was not warranted. There was also an argument that even if Patty Hill was the author of the lyrics, she she lost the copyright in those lyrics through divestive publication before 1935. When an author creates a work he or she is entitled to common law copyright protection. Back in 1935, when a work was published for the first time, it lost state common law protection. If the owner published the work published work in compliance with the requirements of the 1909 Copyright Act however, the owner could obtain federal protection for the published work. Failure to comply with the 1909 Copyright Act would cause the published work to irrevocably enter the public domain. As with the issue of authorship, the judge held that a directed verdict on the issue of divestive publication was not warranted. The judge held similarly on the issue of whether Mildred or Jessica Hill abandoned their rights in the lyrics prior to the publication and registration of E51990. While these issues may resurface if anyone else were to claim copyright in the lyrics to Happy Birthday To You, these issues would require additional findings of fact before any ruling could be made on them.

The Agreements

The final matter decided by the court was the issue of the transfer of the copyright in the lyrics to Happy Birthday To You. Marya/Siegel argued that Warner/Chappell had no evidence that Summy Co. ever obtained the copyright in the lyrics to Happy Birthday To You from the Hill sisters. Marya/Siegel contended that the evidence showed that the E51990 copyright registration was merely for one of several piano arrangements that Jessica Hill authorized Summy Co. to publish and register. Warner/Chappell argued that Summy Co. obtained the copyright in the lyrics to Happy Birthday To You through one or more of three separate agreements.

The First Agreement, allegedly executed in the 1890s was between Mildred and Patty Hill and Mr. Summy and Summy Co. The court held that this First Agreement did not “contemplate the use of the aforementioned songs in sound motion pictures or dramatic performances or in any other wise or manner except in sheet music form.” Warner/Chappell also argued the Second Agreement, allegedly entered into between Jessica Hill and Summy Co. in 1934 and 1935 transferred rights in the Happy Birthday lyrics to Summy Co. The court however, held the Second Agreement was merely for rights in the piano arrangements of the song. Warner/Chappell argued the Third Agreement entered into in 1944 between Jessica Hill and Summy Co. to resolve the Hill-Summy lawsuit included a transfer of the E51990 copyright registration. Unfortunately for Warner/Chappell, the Third Agreement does not include any discussion of the lyrics to Happy Birthday To You or any suggestion that the Hill sisters transferred their common law rights in the lyrics to Happy Birthday To You to Summy Co. The court went on to find that there is no other testimony or circumstantial evidence tending to show that a transfer of the lyrics occurred. The court noted that Warner/Chappell “cannot even point to evidence showing that the Hill sisters transferred their rights in the lyrics to the Hill Foundation, such that the Hill Foundation could, in turn, legitimately transfer them to Summy Co.”

Who Owns the Copyright in the Lyrics to Happy Birthday to You?

Unfortunately, courts can only decide the specific issues presented to them for adjudication. Once the court decided that there was insufficient evidence to prove Warner/Chappell owned the copyright in the lyrics Happy Birthday To You, the court was not able to resolve the unasked question of who actually does own the copyright in those lyrics. For now, the copyright in the lyrics to Happy Birthday To You appears to be an “Orphan Work.” So while it is clear for the time being that Warner/Chappell does not own the copyright, it is unclear who does. Although highly unlikely, it is possible that a potential owner may surface with a chain of title to the work, at which point that owner may have a cause of action for copyright infringement against anyone using the lyrics to Happy Birthday To You. This “problem” with orphan works is well known and results from the entertainment industry’s relentless push to continually extend the length of copyright protection.

Unlike “patents” which last twenty years from their filing date, copyrights can last well over 100 years. Article I, Section 8, Clause 8 of the United States Constitution secures to authors, for a limited time, the exclusive right to their writings. The First Congress enacted the Copyright Act of 1790, granting American authors the right to print, re-print, or publish their work for a period of fourteen years and to renew that term for another fourteen years. Today, for an individual author, copyright protection extends for the life of the author, plus 70 years. For anonymous works and works for hire, the term is 95 years from publication, or 120 years from creation, whichever comes first. Applying this calculation to the lyrics to Happy Birthday To You, there is still a possibilty of someone claiming copyright in the lyrics until the year 2030, which is 95 years after their first publication by the authors.

Conclusion

While it is clear Warner/Chappell can no longer demand royalties for use of the lyrics to Happy Birthday To You, it is less clear that the lyrics are in the public domain. Given the extensive research done by both parties in the Marya, et al. v. Warner/Chappell Music Inc. et al. case above, it seems unlikely another owner will come out of the woodwork any time soon. Without the ability to definitively confirm the passage of the lyrics into the public domain however, any usage of the lyrics must come with the clear warning of caveat emptor.

Brett Trout

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