On Tuesday, September 22, the Happy Birthday song was released from commercial prison. A chain of disputes over rights to the song, now stretching back more than 80 years, ended with a ruling in a federal case being heard in California. Judge George H. King, the chief judge for the Central District of California at Los Angeles, found that the company now claiming to own the song lacks a valid copyright.
The lawsuit was brought by Jenn Nelson, a video producer in New York who has been assembling a documentary about the song. A key, unresolved issue throughout long controversy has been lack of a clearly established author of the song’s lyrics. To careful observers, the outcome of the case had seemed likely. Without an author, there is no copyright interest. [See note, below.]
Copyright background and finding: Judge King found he did not need to resolve issues of authorship. Instead, he found no credible evidence that a potential author of the Happy Birthday lyrics had ever transferred rights to them to any publisher involved in current claims of ownership.
The song may have been created as early as 1890 by Mildred Jane Hill and Patty Smith Hill, two sisters who were writing songs for young children while Patty Hill worked as principal of the Louisville Experimental Kindergarten School. In 1893 the melody appeared with a different song, Good Morning to You, authored by the sisters and published and copyrighted by the Clayton F. Summy Co., then at 220 Wabash Ave. in Chicago.
The melody appeared with the Happy Birthday lyrics in unauthorized commercial publications at least as early as 1912. In his opinion, Judge King cited a 1911 church publication. Despite those sheet music publications, plus sound recordings and appearances in early sound films, no claims of authorship or copyright disputes emerged until more than 20 years later. What was then disputed was use of the melody in a Broadway play.
Warner/Chappell Music of Los Angeles and subsidiaries acquired purported rights to the Happy Birthday song, plus many other musical works, by purchasing a successor to the Clayton F. Summy Co. in 1988. According to news reports, since that time they could have collected as much as $50 million in royalties for use of the song in movies, recordings and commercial performances.
Ms. Nelson, later joined by co-plaintiffs in California, paid royalties to Warner/Chappell to use the Happy Birthday song in performances. They sued to recover payments plus legal costs and sought a judgment that Warner/Chappell lacked a valid copyright to the Happy Birthday lyrics. Copyright interests in the melody had expired in 1949, at the end of a copyright renewal for the original songbook published by the Summy Co.
Consequences: Legal consequences may take a few more years to conclude. At federal district court, hearings and rulings are expected on motions to certify class action status and to award damages and costs. The number of years for which royalties might have to be disgorged could be increased by precedents in the ninth federal circuit that are favorable to the plaintiffs. After that, appeals seem likely.
Circumstances of the Happy Birthday song are so unusual that rulings might never apply to another copyright case. Until this case, for more than 80 years all disputes over the song had been settled privately. People who want to use the song in commercial performances, recordings, videos and movies may start to feel free to do that, now that a federal court has finally ruled on the key element.
– Craig Bolon, Brookline, MA, September 23, 2015
Note: “Without an author, there is no copyright interest.” Authorship and originality have been ingredients of copyrights since they were authorized by the U.S. Constitution in Article 1, Section 8. In Section 4, the Copyright Act of 1909 provided, “works for which copyright may be secured under this act shall include all the writings of an author.” Section 102 of the Copyright Act of 1976 narrowed the range somewhat, saying, “copyright protection subsists in original works of authorship.” A requirement of originality, expressed in case law, was made explicit under that statute.
Memorandum and order for cross-motions, Good Morning to You Productions Corp., et al., v. Warner Chappell Music, Inc., et al., case 2:13-cv-4460 in the Central District of California (Los Angeles), filed June 20, 2013 (originally filed as Rupa Marya v. Warner Chappell Music, Inc.), September 22, 2015
Christine Mai-Duc, All the ‘Happy Birthday’ song copyright claims are invalid, federal judge rules, Los Angeles Times, September 22, 2015
The Worker and His Work, eight volumes, Board of Sunday Schools, Methodist Episcopal Church (Washington, DC), 1911
Craig Bolon, Saga of a song: Happy Birthday to You, Brookline Beacon, August 8, 2015