Happy Birthday to Everyone,|Except Warner/Chappell Music

     MANHATTAN (CN) – Warner/Chappell Music has “extracted millions of dollars in unlawful licensing fees” for the 120-year-old “Happy Birthday” song, which is in the public domain, Good Morning to You Productions claims in a federal class action.
     There is no question that the song is in the public domain; the only question is how Warner/Chappell has bullied people into paying for it, Good Morning to You says in the complaint.
     Good Morning is making a documentary about the Happy Birthday song, which, not surprisingly, will include the tune. It claims it succumbed to Warner/Chappell’s demand for a $1,500 licensing fee, but balked upon receiving a second letter from Warner/Chappell, warning that it could face a $150,000 statutory penalty for copyright infringement.
     The complaint states: “More than 120 years after the melody to which the simple lyrics of ‘Happy Birthday to You’ is set was first published, defendant Warner/Chappell boldly, but wrongfully and unlawfully, insists that it owns the copyright to ‘Happy Birthday to You,’ and with that copyright the exclusive right to authorize the song’s reproduction, distribution, and public performances pursuant to federal copyright law. Defendant Warner/Chappell either has silenced those wishing to record or perform ‘Happy Birthday to You’ or has extracted millions of dollars in unlawful licensing fees from those unwilling or unable to challenge its ownership claims.
     “Irrefutable documentary evidence, some dating back to 1893, shows that the copyright to ‘Happy Birthday to You,’ if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to ‘Happy Birthday to You,’ those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935. Significantly, no court has ever adjudicated the validity or scope of the defendant’s claimed interest in ‘Happy Birthday to You,’ nor in the song’s melody or lyrics, which are themselves independent works.
     “Plaintiff GMTY, on behalf of itself and all others similarly situated, seeks a declaration that ‘Happy Birthday to You’ is dedicated to public use and is in the public domain as well as monetary damages and restitution of all the unlawful licensing fees that defendant Warner/Chappell improperly collected from GMTY and all other class members.”
     Good Morning, based in New York City, claims that it paid Warner/Chappell $1,500 in April for a “synchronization license agreement” for “Happy Birthday.”
     On its website, checked this morning, Warner/Chappell claims to have copyrights to more than 1 million tunes.
     “The Warner/Chappell Music catalog includes standards such as ‘Happy Birthday To You’ …” the company says in its “About Us” web page.
     There is no mention of Good Morning’s lawsuit on the Warner/Chappell “News” web page.
     Good Morning’s 28-page lawsuit includes a detailed history of the origins of the Happy Birthday song, from which the following summary is taken.
     Sometime before 1893, sisters Mildred and Patty Hill wrote words and music for 73 songs, composed or arranged by Mildred, with words by Patty. They sold or assigned their rights to it to Clayton F. Summy on Feb. 1, 1893, for 10 percent of retail sales. The songs included “Good Morning to All.”
     Summy published the songbook that year under the title “Song Stories for the Kindergarten,” and filed a copyright application on Oct. 16, 1893, in which he claimed to own the copyright, but not to be the author.
     The lyrics to “Good Morning to All” were set to the melody now known as “Happy Birthday.”
     The lyrics were:
     Good morning to you
     Good morning to you
     Good morning dear children
     Good morning to all.
     The “Happy Birthday” lyrics were not published in the songbook.
     Summy republished the songbook twice before 1900, never with the Happy Birthday lyrics.
     The complaint states: “Even though the lyrics to ‘Happy Birthday to You’ and the song ‘Happy Birthday to You’ had not been fixed in a tangible medium of expression, the public began singing ‘Happy Birthday to You’ no later than the early 1900s.
     “For example, in the January 1901 edition of ‘Inland Educator’ and ‘Indiana School Journal,’ the article entitled ‘First Grade Opening Exercises’ described children singing the words ‘happy birthday to you,’ but did not print the song’s lyrics or melody.”
     Then in 1907, according to the complaint: “Fleming H. Revell Co. (‘Revell’) published the book ‘Tell Me a True Story,’ arranged by Mary Stewart, which instructed readers to:
     “Sing: ‘Good-bye to you, good-bye to you, good-bye dear children, good­bye to you.’ Also: ‘Good-bye dear teacher.’ (From ‘Song Stories for the Sunday-School,’ published by Summy & Co.)
     “Sing: ‘Happy Birthday to You.’ (Music same as ‘Good-bye to You.’)” (Parentheses in complaint.”
     Finally, the complaint states: “Upon information and belief, the lyrics to ‘Happy Birthday to You’ (without the sheet music for the melody) were first published in 1911 by the Board of Sunday Schools of the Methodist Episcopal Church (‘Board of Sunday Schools’) in ‘The Elementary Worker and His Work,’ by Alice Jacobs and Ermina Chester Lincoln, as follows:
     “Happy birthday to you, Happy birthday to you, Happy birthday, dear John, Happy birthday to you. (Sung to the same tune as the ‘Good Morning’)
     “[NOTE: The songs and exercises referred to in this program may be found in these books: … ‘Song Stories for the Sunday School,’ by Patty Hill.]
     “On or about January 6, 1912, the Board of Sunday Schools filed a copyright application (Reg. No. A303752) with the Copyright Office for ‘The Elementary Worker and His Work.'” (Parentheses, brackets and ellipsis as in complaint.)
     The copyrights to Summy’s song books expired by the mid 1920s and he did not renew them.
     “In or around March 1924, the sheet music (with accompanying lyrics) to ‘Happy Birthday to You’ was in a songbook titled Harvest Hymns, published, compiled, and edited by Robert H. Coleman (‘Coleman’). Upon information and belief, ‘Harvest Hymns’ was the first time the melody and lyrics of ‘Happy Birthday to You’ were published together.
     “Coleman did not claim authorship of the song entitled ‘Good Morning to You’ or the lyrics to ‘Happy Birthday to You.’ Although ‘Harvest Hymns’ attributed authorship or identified the copyrights to many of the works included in the book, it did not attribute authorship or identify any copyright for ‘Good Morning to You’ or ‘Happy Birthday to You.’ …
     “The sheet music (with accompanying lyrics) to ‘Happy Birthday to You’ was again published in 1928 in the compilation ‘Children’s Praise and Worship,’ compiled and edited by A.L. Byers, Bessie L. Byrum, and Anna E. Koglin (‘Byers, Byrum & Koglin’). Upon information and belief, ‘Children’s Praise and Worship’ was the first time the song was published under the title ‘Happy Birthday to You.’
     “On or about April 7, 1928, Gospel Trumpet Co. (‘Gospel’) filed a copyright application (Reg. No. A1068883) with the Copyright Office for ‘Children’s Praise and Worship.’
     “‘Children’s Praise and Worship’ attributed authorship or identified the copyrights to many of the works included in the book. Significantly, it did not attribute authorship or identify any copyright for the song ‘Happy Birthday to You.'”
     There was no litigation involving the Happy Birthday song until 1934, when Jessica Hill, Mildred and Patty’s sister, sued Broadway show producer Sam Harris. Harris in 1933 produced the Broadway show “As Thousands Cheer,” with music and lyrics by Irving Berlin. The show included the tune “Happy Birthday.”
     Hill also sued the Federal Broadcasting Corp. in 1935. Both claims alleged infringement of the 1893 and 1896 copyrights of “Good Morning to All.”
     Summy, with a reconstituted corporation, applied for a copyright for a republished musical composition with new copyright matter on Dec. 29, 1934, for the song “Happy Birthday.”
     We are not yet halfway through the 28-page complaint. Suffice it to say that more litigation ensued, from more parities, including Hill Foundation v Summy Co. III, in 1942, seeking an accounting and royalties; Hill Foundation v Postal Telegraph-Cable Co., in 1943, for copyright on “Good Morning to All.”
     There has never been a judicial determination on the copyright of “Good Morning to All,” according to the complaint. But Summy Co. III, renamed as Summy-Birchard Co., filed more copyright applications and renewals for “Happy Birthday,” and “Good Morning to All,” though none of them claimed authorship of the tunes.
     Summy-Birchard Co. was renamed Birch Tree Ltd. in the 1970s, and Warner/Chappell bought it in 1998.
     This brings us to today, and Good Morning’s lawsuit.
     It states: “According to a 1999 press release by ASCAP, Happy Birthday to You was the most popular song of the 20th Century.
     “The 1998 edition of the ‘Guinness Book of World Records’ identified ‘Happy Birthday to You’ as the most recognized song in the English language.
     “Defendant Warner/Chappell currently claims it owns the exclusive copyright to
     ‘Happy Birthday to You’ based on the piano arrangements that Summy Co. III published in 1935.
     “Plaintiff GMTY is producing a documentary movie, tentatively titled ‘Happy Birthday,’ about the song ‘Happy Birthday to You.’
     “In one of the proposed scenes to be included in ‘Happy Birthday,’ the song ‘Happy Birthday to You’ is to be sung.
     “During the production process, plaintiff GMTY learned that defendant Warner/Chappell claimed exclusive copyright ownership to ‘Happy Birthday to You.’
     Accordingly, in September 2012, plaintiff requested a quote from Warner/Chappell for a synchronization license to use ‘Happy Birthday to You’ from Warner/Chappell’s website.
     “On or about September 18, 2012, defendant Warner/Chappell responded to plaintiff GMTY’s inquiry by demanding that GMTY pay it the sum of $1,500 and enter into a synchronization license agreement to use ‘Happy Birthday to You.’
     “On or about March 12, 2013, defendant Warner/Chappell again contacted plaintiff GMTY and insisted that GMTY was not authorized to use ‘Happy Birthday to You’ unless it paid the licensing fee of $1,500 and entered into the synchronization license that Warner/Chappell demanded.
     “Because defendant Warner/Chappell notified plaintiff GMTY that it claimed exclusive copyright ownership of ‘Happy Birthday to You,’ GMTY faced a statutory penalty of
     $150,000 under the Copyright Act if it used the song without Warner/Chappell’s permission and Warner/Chappell, in fact, owned the copyright that it claimed.
     “Faced with a threat of substantial penalties for copyright infringement, on or about March 26, 2013, plaintiff GMTY was forced to and did pay defendant Warner/Chappell the sum of $1,500 for a synchronization license and, on or about April 24, 2013, GMTY was forced to and did enter into the synchronization license agreement to use ‘Happy Birthday to You.'”
     Warner/Chappell’s demand, however, is bogus, Good Morning claims.
     It seeks declaratory judgment that “Happy Birthday” is in the public domain, class certification, it wants its money back, an accounting, restitution of money for the class, damages for unfair competition, and costs.
     It is represented by Randall Newman with Wolf Haldenstein Adler Freeman & Herz.

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