LOS ANGELES (CN) – Warner/Chappell does not hold a valid copyright interest in the song “Happy Birthday to You” because new evidence reveals the song has been in the public domain since 1922, an attorney told a federal judge on Wednesday.
Two years ago, documentary filmmaker Jennifer Nelson filed a class action complaint through her production company with three other plaintiffs, claiming that the music publisher collects millions of dollars in licensing fees for the song even though authorship and ownership are in dispute.
Nelson was shocked when Warner/Chappell charged her $1,500 to license the song for a documentary about the song’s history and origins.
The original melody for “Happy Birthday to You” was composed in the late 1800s by school teacher Mildred Hill in Louisville, Kentucky. The song was a variation on a composition called “Good Morning to All,” with lyrics penned by her sister, Patty Hill.
Nelson’s attorneys also credit Patty with writing the lyrics for “Happy Birthday to You.”
Interest for the Wednesday morning court hearing in U.S. District Judge George King’s downtown courtroom was heightened by the plaintiffs’ claim on Monday that the song had been in the public domain for more than 90 years.
King did not rule on the plaintiffs’ motion for summary judgment, instead giving them seven days to respond to the music publisher’s July 28 opposition.
Though the parties were in court to argue whether Patty Hill had abandoned the copyright to the “Happy Birthday to You” lyrics, Nelson’s attorneys said in ex parte request filed on Monday that they had “definitive proof” that there is no valid copyright to the song.
Warner/Chappell, a subsidiary of Warner Music Group, based its claim of ownership on two copyright registrations in 1935 by the Clayton F. Summy Company, which published “Happy Birthday to You” in songbooks.
The music publisher says it secured the copyright after its acquisition of Birch Tree Group Limited in 1988.
But in their ex parte request, the plaintiffs claimed to have discovered a “proverbial smoking-gun” – a 1927 publication called “The Everyday Song Book” – that includes Mildred’s composition, Patty’s “Happy Birthday” lyrics and was authorized by Summy. Warner/Chappell handed over a copy of the songbook along with hundreds of other documents during discovery.
The plaintiffs’ attorneys say they later obtained an original copy of the songbook and an earlier 1922 version.
“(N)o copyright was claimed or identified” in “Happy Birthday” in the publications, the request stated.
The “investigative efforts conclusively prove that any copyright that may have existed for the song itself (i.e., the setting of the ‘Happy Birthday’ lyrics to the melody of ‘Good Morning’) expired decades ago,” according to the filing.
But in an opposition, Warner/Chappell said that there was no evidence that the Hills’ successor – their sister Jessica Hill – had given up the sisters’ copyright to the work.
“The evidence instead shows that Summy sought and obtained a license to publish the ‘Happy Birthday to You’ lyrics from Jessica Hill in 1935,” the music publisher’s attorney Kelly Klaus wrote. “Summy would not have had to secure a license from Jessica Hill if it already had the rights to ‘Happy Birthday to You’ or if the work had fallen into the public domain.”
Outside the courtroom, one of Nelson’s attorney Mark Rifkin said that Warner/Chappell cannot claim ownership of a song “given to the nation around the turn of the 20th century.”
“What we hope is the court says that ‘Happy Birthday to You’ belongs to the public just like Patty Hill said 80 years ago,” Rifkin said, citing comments she made in a 1934 Time magazine article.
Rifkin said he expects King to rule by the “end of the summer.”
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