Happy Birthday to Who? Warner Has No Copyright, Judge Says

It’s the kind of thing you never notice until someone points it out: for years, in television shows and movies across the world, birthdays have been celebrated with a rousing rendition of “For He’s a Jolly Good Fellow.” Why? The answer’s simple: it was getting too expensive to sing “Happy Birthday.” In one of the oddest quirks of copyright law, Warner/Chappell Music Inc. has owned the copyright of the eponymous song for decades and has made good money enforcing its claim. Now, however, a judge in California may have finally put an end to the company’s somewhat miserly policy, ruling that the copyright claim may never have been valid to begin with.

The ruling rests on the nature of Warner’s claim and the fact the company says it holds copyright to a specific combination of the music and the lyrics (another reason movies may use the “Happy Birthday” music without any words: it’s cheaper). The claim goes back to 1935 and the original copyright registration by music publisher Summy Co. bought the rights from the song’s long-recognized composers, sisters Mildred and Patty Hill, whose version “Good Morning to All” can be traced back to at least the 1890s. Keeping up so far? Here’s where it gets tricky: plaintiffs in the class action currently being heard in California argued that the 1935 copyright, on which Warner’s current claims are based, never identifies the correctly attributed lyrics and, as the tune is old enough to have entered the public domain long ago, Warner’s claim amounts to little more that copyright on one specific musical arrangement – and not the worldwide, exclusive copyright the company has claimed for the past few decades.

Basically, plaintiffs say that Warner can certainly enforce copyright claims for the copyrights it holds, but the company only holds one specific copyright for a performance of “Happy Birthday” that follows the 1935 piano arrangement. That arrangement makes no reference to the now-common lyrics, meaning Warner can’t say they own those too. Thus, plaintiffs argued, the millions of dollars Warner has received over the last eighty years were gained from illegal copyright claims.

Issuing his order, U.S. District Judge George H. King wrote:

“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. “

And then, crucially:

“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.”

In a twist right out of a made-for-TV movie, the California lawsuit was filed by plaintiffs who include Good Morning To You Production Corp., a production company currently making a documentary about the song’s origin, who sued Warner in New York saying the company was making money by unlawfully filing claims to songs it does not have exclusive copyright over. That suit was voluntarily dropped in 2013, only to be brought back to life in California. After presenting evidence tracing the separate histories of the song’s lyrics and musical score, plaintiffs urged the judge to rule against Warner’s long-standing claim. In the end, Judge King was convinced, focusing on the piano arrangement that Warner used as the basis for their exclusive claim and commenting, somewhat tongue in cheek, that “Obviously, pianos do not sing.” No signing, no copyright – and the production companies rejoiced.

So, what does this mean? Judge King’s ruling leaves Warner with copyright over one piano arrangement and no lyrics. The company’s past claims – and the millions they’ve earned by enforcing what may now be an invalid claim – may now be expired or invalid, meaning the company’s legal woes are far from over.

It also means “Happy Birthday” may finally return, lyrics and all, to the public domain – although, let’s be honest, most people never realized it left.