LOS ANGELES (CN) – Warner/Chappell will not charge you if you sing “Happy Birthday” before your toddler blows out the candles on her birthday cake. But if you’re a Hollywood producer, expect to take a hit.
In court to fight claims that the 120-year-old “Happy Birthday to You” is in the public domain, a Warner/Chappell representative said it sometimes charges major motion pictures between five and six figures to license the most recognizable song in the English language.
The revelation came at a Monday hearing at the Edward R. Roybal Courthouse in downtown Los Angeles, where U.S. District Judge George King was hearing motions and cross-motions for summary judgment in a 2013 class action complaint .
Good Morning to You Productions says Warner/Chappell collects millions of dollars in licensing fees for “Happy Birthday to You,” even though the origins of the song, and who owns it, are disputed.
Calling the lawsuit a “David and Goliath” case, Good Morning President Jennifer Nelson said it is “ridiculous” people have to pay for a song that has been in the public domain for 65 years.
“If you don’t pay for the license to the song they will notify you and let you know that you have to pay,” Nelson said after the hearing. “They’ve never actually sued anybody but they have strong-armed people into having to pay.”
Nelson said she had paid $1,500 to use “Happy Birthday to You” for 10 seconds at a festival.
Warner/Chappell says that chain of title extends to a valid federal copyright registration for “Happy Birthday” in 1935.
But the plaintiffs say the song was not copyrightable because it had already been performed for over three decades, and by then was a public work. In addition, the registrations were only for “specific piano arrangements,” the lawsuit states.
If King declines to rule in favor of either the plaintiffs or music publisher the case could still go to trial.
While delving into the complex copyright issues that will decide whether “Happy Birthday” belongs to one company – or all of us – Judge King asked for a breakdown of how much Warner/Chappell charges to license the song.
Warner’s attorney Kelly Klaus said he did not know the exact numbers but clarified what the license fees cover.
“We’re not talking about little kids’ birthday parties in the back yard,” Klaus said.
Warner Chappell’s head of legal and business affairs, Scott McDowell, told King from the courtroom that a music synchronization license varies but can cost from $500 to $1,500.
A major feature film could pay up to five or six figures, McDowell said.
Klaus stressed that licenses for some public performances of the song – say at a party in a restaurant – are covered under blanket licensing agreements with American Society of Composers, Authors and Publishers, known as ASCAP.
After the hearing, the plaintiffs’ attorney Mark Rifkin said plaintiff and filmmaker Robert Siegel had paid $3,000 to use “Happy Birthday” in his indie comedy “Big Fan.”
“For a major motion picture it could be six figures?” Rifkin said.
Warner bases its claim of ownership on two copyright registrations in 1935 by the Clayton F. Summy Company. The latter company published the song in songbooks – claiming to own the copyright, but not to be the author.
The original melody for “Happy Birthday to You” was composed in the late 1800s by school teacher Mildred Hill in St. Louisville, Kentucky. The song was part of the composition for a song called “Good Morning to All,” with lyrics by her sister Patty Hill, according to court records.
The sisters sold or assigned their rights to Summy for 10 percent of retail sales.
Warner/Chappell, a subsidiary of Warner Music Group, says it secured the copyright after its $15 million acquisition of Birch Tree Group Limited in 1988.
There has never been a judicial determination on the copyright of “Good Morning to All,” the plaintiffs claim.
Judge King took the case under submission. He did not give an indication when he will rule.
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