In an order issued yesterday, Judge George King agreed with the plaintiffs that Warner/Chappell did not hold the rights to the song “Happy Birthday”. The case was filed in 2013 by filmmaker Jennifer Nelson, after she told she must license the song for a documentary she was planning to make about the song.
He ruled that the original copyright was granted for the piano arrangement of the song, not the words.
Sisters Mildred and Patty Hill wrote a song called “Good Morning To All” in the 1890s, with the music that later would become popular with the “Happy Birthday” words sung to it.
Judge King said “Happy Birthday” has at least two copyrightable elements, the music and the lyrics, and each element is protected against infringement independently.
“The distinction between the music and the lyrics as copyrightable elements is critical in this case because both Parties agree that the Happy Birthday melody was borrowed from Good Morning and entered the public domain a long time ago,” wrote King. “The Parties disagree only about the status of the Happy Birthday lyrics. Defendants contend, in brief, that the Hill sisters authored the lyrics to Happy Birthday around the turn of the last century, held onto the common law rights for several decades, and then transferred them to Summy Co, which published and registered them for a federal copyright in 1935.
“Plaintiffs challenge nearly every aspect of this narrative. They argue that the lyrics may have been written by someone else, the common law copyrights in the lyrics were lost due to general publication or abandonment before the lyrics were published, and the rights were never transferred to Summy Co.”
Warner/Chappell paid $15 million to buy Birch Tree Group in 1988, the successor to Summy Co.
The judge concluded the summary judgment record shows that there are triable issues of fact as to whether Patty wrote the Happy Birthday lyrics in the late Nineteenth Century and whether Mildred may have shared an interest in them as a co-author.
“Even assuming this is so, neither Patty nor Mildred nor Jessica [a third sister] ever did anything with their common law rights in the lyrics,” he said. “For decades, with the possible exception of the publication of The Everyday Song Book in 1922, the Hill sisters did not authorize any publication of the lyrics. They did not try to obtain federal copyright protection. They did not take legal action to prevent the use of the lyrics by others, even as Happy Birthday became very popular and commercially valuable. In 1934, four decades after Patty supposedly wrote the song, they finally asserted their rights to the Happy Birthday/Good Morning melody – but still made no claim to the lyrics.”
The judge said Hill sisters gave Summy Co the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics.
If the decision stands, Warner/Chappell will no longer be able to claim it is owed a royalty anytime ‘Happy Birthday” is performed. It is estimated that Warner/Chappell receives about $2 million a year from the song, charging $1,500 to $50,000 for its use in movies, radio, television and elsewhere.
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