14
May2017

We Can Finally Sing “Happy Birthday” Without Paying Warner Music

It may come as a surprise to many that for over a century filmmakers, artists, and the like, had to fork over the dough – to the tune of $1,500 – to use the tune “Happy Birthday to You.”  The $1,500 licensing fee was paid to Warner/Chappell Music Inc., who raked in an estimated $2 million a year in licensing fees by enforcing its supposed copyrights in the song.  This will now end after U.S. District Judge George H. King of California, ruled recently that the company never owned a valid copyright on the oh-so-popular song.

Warner/Chappell Music Inc., the publishing unit of Warner Music Group, claimed it inherited a 1935 copyright for the song from a company it purchased in 1988.  In 2013, this claim was challenged in court by a number of filmmakers and artists who demanded the return of their licensing fees, in light of new evidence challenging Warner’s copyright claim.  According to the California federal judge’s ruling, Summy Co., who allegedly acquired the copyright from the Happy Birthday song’s original authors, really acquired only the copyright to the song’s melody, which had long since fallen into the public domain.  There was no proof that Summy Co., ever acquired the lyrics to the song, naturally leading to the conclusion that Warner/Chappell Music Inc., never owned the lyrics either.

The ruling doesn’t mean that the “Happy Birthday to You” song is actually in the public domain.  The question remains whether a rightful owner to the song exists.  But proving rightful ownership of the song may be difficult since the song is over a century old.

In light of the ruling, the song is now considered an “orphan work,” which is essentially a copyright-protected work for which the true owner is indeterminate or uncontactable.  This begs the question, who gets paid to legally use the song?  Tracing ownership in these situations may be a difficult task, especially in light of the duration of copyright protection.  The 1976 Copyright Act granted protection for the life of the author plus 50 years, or for 75 years for a work of corporate authorship.  The 1998 Copyright Term Extension Act increased that protection to 70 years after the life of the author, with corporate works having protection ranging from 95 to 120 years.  The inherent difficulty of tracing ownership can be minimized through the establishment of “chain of title”–keeping accurate records of ownership beginning with the original author.

It would not come as a surprise if we are to hear that the case is headed for a Ninth Circuit appeal.  Stay tuned.  The case is Good Morning to You Productions Corp. et al v. Warner Chappell Music Inc. et al., case number 2:13-cv-04460, in the U.S. District Court for the Central District of California.