November 19, 2018
Originally posted 2018-11-19 11:19:43
By Kelsey Laugel |www.amdlawgroup.com
In a recent suit against Warner/Chappell, the current owners of the copyright to the famous “Happy Birthday” song, plaintiffs Good Morning to You Productions Corp. called the validity of the copyright into question. The California federal judge overseeing the case has since ordered the parties to provide more evidence regarding the alleged abandonment of the copyright.
It may surprise some to know that this popular song, consisting of a six-note melody and accompanied by a six-word set of repetitive lyrics, is protected by copyright law. Sisters Patty and Mildred Hill are credited with composing the first version of a tune called “Good Morning to All” in 1889. While the details after that are a bit vague, it is clear that the interest in the song was sold to Clayton Summy, who later registered various copyrights in the song, including the melody, lyrics and piano arrangement. The lyrics to the “Happy Birthday” version of the song everyone knows were adapted to the melody sometime in the early part of the 20th century, but the Hill sisters did not write those words.
The plaintiffs argue that the melody has been in the public domain for over 65 years and that the public has been using the lyrics since the early 1900s, before the copyright was registered. They contend that, as a result of this widespread usage, the song has become a public work and that the publication and repeated public performances of the song before the copyright was registered precludes a subsequent copyright claim.
Warner/Chappell’s response to this claim is that the Hill sisters themselves did not disseminate the lyrics to the song prior to registration and that the fact that other parties have done so does not dictate that the copyright is not valid.
In response to the suit, the judge has requested more information regarding the abandonment issue. He expressed his concern that the plaintiffs were confusing two separate claims: one for abandonment, which requires an overt act manifesting the purpose of the owner to surrender his rights in the work, and one for the loss of a copyright due to general publication.
If the plaintiffs are successful, it would mean that film and TV producers would no longer be required to pay license fees to use the “Happy Birthday” song. For reference, the makers of a documentary on the history of a song paid Warner/Chappell $1,500 to use the song in the movie.
While it seems as though the judge might be favoring the Warner/Chappell side of the abandonment argument, this does not mean that the copyright won’t be deemed invalid for some other reason.
So, that little tune that you sing in the shower or hum softly to yourself could be the next great classic song! If you have questions about intellectual property, reach out to AMD LAW.