by : February 2016, Music Law

The Toppling of Happy Birthday

The Toppling of Happy Birthday

Happy Birthday To You, referred to as Happy Birthday in the remainder of this article, is arguably the best-known song in the world. It is a staple of life and has been for over a century. And this is true both in English-speaking countries and the rest of the world, where the lyrics of Happy Birthday are translated and adapted to suit local mores. For most of us, and wherever we live, the song has become part of our collective DNA ­— a patrimony we share as modern humans. Indeed, we tend to think of Happy Birthday as a public good and not an object with property rights. As a public good there can be no attendant economic transaction in consideration of the song’s ownership rights.

Yet this has not been the case. Happy Birthday has been known to generate as much as seven-figure receipts in the U.S. in annual publishing royalties and licensing fees, and for quite some time now. Among the licensees are greeting card companies, restaurants chains, film producers, advertising agencies, and any business that uses the tune commercially. The song, in short, has been the private property of someone, and the courts have validated the approach.

Public domain provisions come into play only when (i) a song’s copyright term has expired; (ii) the copyright owner has failed to follow copyright renewal rules; (iii) the copyright owner deliberately places the song in the public domain in so-called ‘dedication’; or (iv) copyright law excludes a particular type of creative work. If any of these conditions is met, there is no pecuniary compensation over the song’s commercial performance, distribution, or general usufruct.

The Lawsuit

Now, Happy Birthday’s non-public domain status has become controversial. Two producers of a documentary film, itself about Happy Birthday’s history, recently challenged the law. In 2013, Rupa Marya and Robert Siegel refused to pay a $1,500 synchronization license fee to Warner/Chappell Music, a major music publisher who claims ownership of the song. Siegel and Marya brought a class action lawsuit against Warner/Chappel seeking to free the song from its control. The argument used was that Happy Birthday rightfully belonged in the public domain.

Historically, the origins of the song go back to the XIXth century when sisters and kindergarten teachers Mildred and Patty Hill, composed the song Good Morning. The Hill sisters assigned their rights to the manuscript that contained Good Morning (and other songs) to Clayton Summy in 1893. Summy filed for copyright registration that same year and published a songbook titled Song Stories for Kindergarten, containing Happy Birthday. At that time, copyright was valid for two consecutive 28-year terms, so the copyright on Song Stories for Kindergarten , in which the original melody of Happy Birthday was published, expired in 1949.

However, the lyrics to Happy Birthday, which borrowed the melody from Good Morning, do not have a clear origin. The first publication occurred in 1911 but it did not credit any author. The song was widely popularized after being used by teachers in kindergartens, theater plays, and movies in the early 1930s. Warner/Chappell claims that its copyright on Happy Birthday is based on a 1935 registration, which Warner/Chappell acquired in 1988, when it purchased the Birch Tree Group, the successor of Clayton F. Summy Co. This registration arguably contained the lyrics to Happy Birthday and would only expire in 2030, ninety-five years after registration.

At stake in the class action suit was the issue of whether the 1935 registration effectively included the lyrics to Happy Birthday. Every song has at least two copyrightable elements: the music and the lyrics. Both are independently protected against infringement. The two parties in the case agreed that the music on Happy Birthday was borrowed from the song Good Morning and entered the public domain a long time ago. Therefore, the only copyrightable element that would hold rights to Warner/Chappell would be the lyrics to Happy Birthday.

If the court agreed that Happy Birthday had to be put in the public domain, the plaintiffs wanted Warner/Chappell to return all monies collected as royalties and license fees related to the exploitation of Happy Birthday –– a figure estimated at $2 million per year by George Washington University Professor Robert Brauneis, a consultant to the plaintiffs.

After examining a multitude of documents, agreements, court cases, registration filings, and (rotted) songbooks, judge George King ruled in September 2015 that the 1935 registration did not include the lyrics to Happy Birthday. Clayton Summy had never acquired rights to the words of Happy Birthday but only to the original melody and specific piano arrangements of the music. Therefore, Warner/Chappell did not own a valid copyright of Happy Birthday.

After the decision was issued, and while Warner/Chappell sought to have the judge’s judgment reconsidered or an opportunity to appeal, the Association for Childhood Education, a charity organization co-founded by Patty Hill, tried to intervene in the case alleging that it could be the real copyright holder for Happy Birthday.

In December 2015 the parties involved in the case arrived at a settlement, and even though the terms have not been disclosed yet, it seems that, finally and beyond dispute, the song Happy Birthday will be at last in the public domain.

This is indeed a happy outcome for many. Artists will be free to create their own versions of the song without having to pay for mechanical licenses. Public performances and broadcasts of the tune will not collect funds for anyone, encouraging its diffusion and free play by radio and TV. TV and film producers can use the song without worrying about any synch fees. And greeting card manufactures, and others, could get more creative in the marketplace and save costs.

Public Domain Abroad

However, caution must be exercised since the song may still be protected under copyright legislation in other countries. The case of Brazil will illustrate what considerations may be playing abroad.

In Brazil, the song became popular in 1942, when the famous radio presenter Almirante, Henrique Fóreis Domingues, ran a contest to choose the official Portuguese lyrics to the song. Bertha Homem de Mello, who died in 1999, wrote the selected version, chosen amongst more than five thousand other contenders. Applying the Brazilian copyright law, a work enters the public domain 70 years after the death of the last of the authors. Therefore, the original American version could enter the public domain in Brazil in 2017, 70 years after the death of Patty Hill, who died in 1946. But, arguably, the Brazilian version could only enter into public domain in 2070, 70 years after Bertha Homem de Mello’s death.

According to data collected by the ECAD, the Brazilian Performance Rights Organization, Parabéns a Você, the Brazilian version of Happy Birthday, is one of the top three songs most played in the ‘Live Music and Private Clubs’ category of public performance licenses. However, the PRO does not disclose the number of plays or the yearly income generated by the song. Currently, Bertha Homem de Mello’s s only heir receives 16.6% of all income generated by the song in Brazil, while the other 83.4% goes to Warner/Chappell and the Hill sisters’ heirs.

Conclusions

Warner/Chappell’s copyright claim on Happy Birthday was not strong enough to prevent a public domain challenge. The case hinged on the lyrics of the song, not the music — but the court’s judgment was clear. Therefore, the commoditization of Happy Birthday can no longer be assumed. Most reporters believe that Happy Birthday has indeed migrated to the public domain already, even before any financial settlement between the parties has been disclosed.

The tension between the private ownership of intellectual property and the larger needs of society seem to have been resolved by Judge George King in favor of society’s larger interest.1 Due process was given to Warner/Chappell and the Hill sisters, who anyway enjoyed special rents for a long time.

The ruling, finally, affects the international fortunes of Happy Birthday very differently, as is shown with Brazil’s example. This is not only because the terms of copyright duration are not yet fully standardized across countries. When lyrics are translated into other languages, the integrity of the music copyright cannot be considered in isolation from the new lyrics of the song. For a world blockbuster like Happy Birthday this will always be critical.

 

By Luiz Augusto Buff


1. The full text of the ruling is available at http://www.shadesofgraylaw.com/media/00065570.pdf

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