Warner/Chappell to brief US judge on ’Happy Birthday’ song
US District Judge George King is enquiring intowhether copyright was abandoned on the lyrics to Happy Birthday to You, arguably the most famous song in the English language.
This is the latest development to the three-year long lawsuit against Warner/Chappell Music, with King ordering both parties last Monday to brief him on the issue of abandonment.
The class-action lawsuit was filed in 2013 by Good Morning to You Productions, who claimed that Warner/Chappell owed the company millions of dollars in music synch licenses when they paid the label $1,500 to use the song in a documentary.
If the lawsuit is successful, this means that film and television producers will no longer have to pay license fees to use the song, which can range from $500 for a basic license to up to six figures for a major motion picture.
The plaintiffs claimed that schoolteacher Patty Hill Smith and her sister Mildred Hill composed the song in 1889. It was initially titled Good Morning to All. The sisters sold their rights to the Clayton F. Summy Company, who registered individual copyrights to the melody in 1893, the lyrics in 1924 and the piano arrangement in 1935. Later, the song was held by Birch Tree Group Limited, which was purchased for $15 million by Warner/Chappell in 1988.
The plaintiffs argue that people had been singing the lyrics to Happy Birthday since the 1900s, before the lyrics were registered for copyright. Hence, the song was technically in the public domain for over 65 years.
“Publication and repeated public performances of a work before any copyright is claimed precludes a subsequent copyright claim,” they said.
However, Warner/Chappell argued that since the Hill sisters did not publish or authorise anyone else to publish their work prior to the 1935 registration, the lyrics were protected by common law copyright and therefore did not displace the copyright that Warner/Chappell now own.
The record label maintain that a 19th century work could still be copyrighted, “so long as an author does not ‘abandon’ his literary property in the ‘work’ before he has published it.”
King has now ordered both parties to elaborate on the ‘abandonment’ issue, considering the summary judgement briefing “conflates the issue with the question of whether the copyright was lost due to general publication.”
In Australia, the copyright term for sound recordings is the life of the author plus 70 years. This term was altered from 50 years in 2005, in accordance with the free trade agreement with the US. The Australian law currently states that copyrights for sound recordings are expired if created before 1 January 1955.