“Happy Birthday Everyone”, says Rudi Kidd – consultant solicitor.

We can all breathe a sigh of relief now that the  ongoing legal dispute regarding the copyright of Happy Birthday To You has been settled… for now.  The song is allegedly the most widely performed song in the world; after all, millions of people celebrate their birthday every day of the year.

In terms of copyright, the song is notorious and is cited as a reason why copyright needs fundamental reform. Although the song is over 100 years old, music publisher Warner-Chappell Music maintains that it owns the copyright in the lyrics and therefore has the right to claim royalties in respect of any public performance. The duration of copyright is the life of the creator plus 70 years.

The claimants, Rupa Marya and Robert Siegel, took legal action on the basis that Warner Chappell does not hold any valid copyright in the lyrics. All parties have, however, agreed that the music to the song is out of copyright and in the public domain. So, anyone can play the music without fear of the copyright police tapping them on the shoulder. However, using the lyrics to the song in bars, clubs, and other public places without permission – and without payment – would be an infringement according to Warner Chappell, if its claim is accepted.

The essence of the case is that the claimants were asked to pay a royalty of approximately $1,500 to Warner-Chappell; they did not accept that they had to make the payment so they took a class action for themselves and others in the same position. The US judge decided to hear arguments on the validity of the copyright with other issues to be decided at a later date.

The history of the song is shrouded in a great deal of uncertainty, which is a major factor that contributed to the judge’s decision. What is known is that two sisters, Mildred and Patty Hill, wrote a song called Good Morning to All around 1893 which has the same melody and the same verse structure as Happy Birthday.  Around 1911, a full set of lyrics was published to Happy Birthday To You. With the passage of time no one is sure if this was with the knowledge or consent of the Hill sisters (if it was with their consent, then their common law rights would have been extinguished and the subsequent copyright registration, purporting to copyright the lyrics, would have been invalid). A comparison of the lyrics is as follows:

Good morning to you – Happy birthday to you

Good morning to you – Happy birthday to you

Good morning dear children – Happy birthday dear (……name)

Good morning to all – Happy birthday to you

Good Morning – Happy Birthday

It is not certain who is the author of these lyrics. The first evidence of the Hill sister’s claim being made was in the 1930s, some 40 years after she claimed to have written the lyrics. There was then a series of assignments and agreements covering various copyrights, from the Hill sisters to Clayton F. Summy Co., then to Birch Tree Group from whom Warner-Chappell derived their rights.

The judge said it was unclear whether the Happy Birthday lyrics were ever assigned to Clayton F. Summy Co.  Another major uncertainty was whether the copyright registration, on which Warner-Chappell has been relying for many years, was in fact a registration covering the lyrics, the judge holding that it was only evidence of a registration for a piano arrangement of the melody.

There is a distinct the lack of definitive evidence of an assignment of the Happy Birthday lyrics from the Hill sisters to Clayton F. Summy Co.which was held to be fatal. The question of whether the sisters wrote the lyrics were not addressed by the judge, but once the judge concluded that Warner-Chappell failed to show a valid chain of title from the Hill sisters their defence failed.Warner Chappell has been collecting approximately $2 million per year from this song, since 1988. So, expect an appeal by Warner Chappell.

Source: ipkat-merpel

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