"Happy birthday to you,
Happy birthday to you,
Happy birthday, dear [name],
Happy birthday to you."
It’s a song synonymous with birthday parties, and according to the Guinness World Records, its lyrics are the most famous in the English language. Most people sing “Happy Birthday to You” without even thinking that it might be copyrighted. But since 1988, Warner/Chappell Music has been enforcing its alleged copyright in the song and collecting an estimated US$2million per year in royalties.
On 22 September 2015, after a two-year long lawsuit, Federal Los Angeles Judge George H King ruled on the issue of the song’s copyright in a decision that could have significant consequences for Warner/Chappell.
A Brief History
The melody of “Happy Birthday to You” undisputedly comes from the song “Good Morning to All”, written by sisters Patty and Mildred Hill in 1893 (although their song in turn was possibly based on an even older folk song). The lyrics “Good Morning to All” were later sung as “Happy Birthday to You”, with the first written publication of “Happy Birthday” in around 1911 (in “The Elementary Worker and His Work”, which listed Alice Jacobs and Ermina Chester Lincoln as its authors). However, in December 1935, the Clayton F. Summy Company filed for federal copyright in an arrangement of the song, crediting Mr. Preston Ware Orem and Mrs. R. R. Forman as the authors.
For many years, the Summy Co. granted licenses to use the song without reference to any of the above authors, until the Hill sisters contended that they owned both the music and the lyrics to the song. In 1988, Warner/Chappell purchased the successor of the Summy Co., together with the federal copyright registration. Since then, Warner/Chappell has vigorously enforced its alleged copyright in “Happy Birthday”, charging royalties for any commercial use of the song.
Various legal academics and musicologists have questioned the validity of Warner/Chappell’s alleged copyright, particularly after the 1998 enactment of the Sonny Bono Copyright Term Extension Act, which effectively extended the copyright term of “Happy Birthday” to the year 2030.
On 13 June 2013, a group of American plaintiffs (including documentary filmmakers wishing to use the song) initiated a proceeding to challenge the alleged copyright ownership in “Happy Birthday”. The plaintiffs argued that the song should be “dedicated to public use and in the public domain”, and sought damages and restitution of more than US$5 million. Film-makers have long been opposed to paying royalties for the use of “Happy Birthday”, with 2003 the documentary film “The Corporation” stating that Warner/Chappell charged up to US$10,000 for using the song in a film.
The Current Decision
The parties agreed that the melody of “Happy Birthday” was borrowed from “Good Morning to All” (written by the Hill sisters), which entered the public domain a long time ago. The questions to be answered were whether the lyrics “Happy Birthday” were in fact authored by the Hill Sisters and validly transferred to the Summy Co. (and then Warner/Chappell).
The written judgment, which issued on 22 September 2015, holds:
- The copyright registration of “Happy Birthday” attributed authorship of the lyrics to Mr. Ware Orem and Mrs. Forman, rather than the Hill sisters. However, there are further uncertainties as to the authorship of the lyrics, having been credited to numerous other persons over the years. Despite Warner/Chappell’s contentions that the attribution to Mr. Ware Orem and Mrs. Forman was just a “mistake”, the 1935 federal copyright registration was clearly deficient and could not be presumed valid.
- Even if the Hill sisters had owned copyright in the lyrics (which is unclear), there was no evidence that the Hill sisters had transferred copyright to the Summy Co., or had ever authorised the Summy Co. to register the copyright;
- The Court therefore refused to acknowledge that either the Hill Sisters or the Summy Co. owned copyright in the lyrics as of 1935.
In summary, there is no evidence that the Hill sisters authored, owned, or sought to protect or enforce copyright in the “Happy Birthday” lyrics. The Court was therefore unable to track a valid chain of copyright ownership in the lyrics, which means that neither the Summy Co. nor Warner/Chappell can legitimately claim to own copyright in “Happy Birthday”.
The Possible Consequences
Judge King’s decision (subject to any appeal) leaves open the possibility that another entity might claim copyright in the lyrics. While the true author remains unknown, the first known reference to the lyrics appears in a 1901 journal, and the full lyrics appear in print in 1911. Whether copyright authorship and ownership could in fact be proven, over 100 years later, is highly doubtful.
The decision does not address restitution. However, is likely to have huge financial consequences for Warner/Chappell, particularly given the now seemingly wrongful collection of royalties since 1935. Warner/Chappell has issued a brief statement: “We are looking at the court's lengthy opinion and considering our options.”
Unless Warner/Chappell appeals, many people and organisations will assume that the music and lyrics of “Happy Birthday” is in the public domain and free to be used. While the decision does not expressly go that far, its practical effect seems to be that the authorship and ownership of “Happy Birthday” are so complex and distant that no one will be able to accurately claim exclusive ownership.
The case is also a lesson in evaluating the potential risks of copyright litigation. Parties to copyright litigation need to be able to demonstrate that the copyright was both created and maintained by its owner, to establish a chain of title to it. Where the copyright work is as old and well-known as this, and has been passed between various entities, being able to demonstrate clear transfer of the rights in it is a crucial step in assessment of litigation risk.
This article was written with assistance from Megan Hutchison.
This article is intended to summarise potentially complicated legal issues, and is not intended to be a substitute for individual legal advice. If you would like further information, please contact a Baldwins representative.