Judge Rules ‘Happy Birthday’ Public Domain

     LOS ANGELES (CN) – Warner/Chappell Music’s claim to own the copyright to “Happy Birthday” is “implausible and unreasonable,” a federal judge ruled Tuesday, ending – perhaps – a long-running claim by which the publisher has made millions of dollars.
     Chief U.S. District Judge George King granted summary judgment to Rupa Marya, Good Morning to You Productions et al., and denied it to Warner/Chappell Music.
     Warner/Chappell has extracted enormous amounts of money by demanding licensing fees for the song every time it occurs in a movie or TV show.
     The present complaint began when Good Morning to You Productions was making a documentary about the Happy Birthday song. Warner/Chappell demanded a $1,500 licensing fee, which the company agreed to pay, but it got its back up when Warner/Chappell sent it a second letter, warning it could claim a $150,000 statutory penalty for copyright infringement.
     Good Morning to You sued in 2013. Judge King ruled Tuesday on its fourth amended complaint.
     It’s unclear what, if anything, will happen to all the money Warner/Chappell has made from licensing fees, or if more lawsuits will come from it, as the song, apparently, has been in the public domain for decades. The song already has spawned lawsuits aplenty .
     Judge King recapitulates the history of the tune, which began sometime before 1893, when 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 Clayton F. Summy on Feb. 1, 1893, for 10 percent of retail sales. The songs included “Good Morning to All.” It had the same tune but different words from Happy Birthday.
     Summy published a 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.
     Summy’s copyright expired in the 1920s and he did not immediately renew it. A reconstituted company, the Hill Foundation, applied for a new copyright on it in 1934, and a number of lawsuits followed.
     By then, a number of other companies had also claimed to own the copyright, including the Board of Sunday Schools of the Methodist Episcopal Church (1912), and the Gospel Trumpet Co. (1928).
     The lyrics already had been published in numerous books for elementary school students, often with instructions to sing it to the tune of “Good Morning to All,” or “Good-Bye to You.”
     Patty Hill was deposed in 1935 for a lawsuit involving the use of Happy Birthday in the movie “As Thousands Cheer,” which featured other music by Irving Berlin.
     Her company, the Hill Foundation, sued at least twice in the 1940s to protect its presumed copyright.
     Warner/Chappell claimed to have acquired the rights from the Summy Co., which acquired the rights from the Hill sisters. But Judge King found “this assertion has no support in the record.”
     “The 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,” King ruled. “Defendants’ speculation that the pleadings in the Hill-Summy lawsuit somehow show that the Second Agreement involved a transfer of rights in the lyrics is implausible and unreasonable.”
     King found that Patty Hill had “overtly abandoned” the copyright. He cited a Time magazine article about the “As Thousands Cheer” lawsuit, which stated: “Lyricist
     Patty Hill, who will share in the damages, if any, had no complaint to make on the use of the words because she long ago resigned herself to the fact that her ditty had become common property of the nation.”
     At the time (1935) movie producer Sam Harris was being sued for plagiarism, with a demand for $250 for each time the song was sung in the film.
     Lest this go on forever, let us turn to Judge King’s Conclusion: “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 ever did anything with their common law rights in the lyrics. 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.
     “Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The 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. Defendants’ speculation that the pleadings in the Hill-Summy lawsuit somehow show that the Second Agreement involved a transfer of rights in the lyrics is implausible and unreasonable. Defendants’ suggestion that the Third Agreement effected such a transfer is circular and fares no better. As far as the record is concerned, even if the Hill sisters still held common law rights by the time of the Second or Third Agreement, they did not give those rights to Summy Co.
     “In light of the foregoing, Defendants’ Motion is DENIED and Plaintiffs’ Motion is GRANTED as set forth above. Because Summy Co. never acquired the rights to the
     Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.”
     Courthouse News consulted several professional musicians about Warner/Chappell’s claims to own the copyright to “Happy Birthday.” All of them considered it ridiculous.

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