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Wednesday, 23 September 2015

Happy Birthday to everyone: candles blown out on infamous royalty claim

"Happy Birthday to You" is notorious in copyright terms and frequently cited as a reason why copyright needs fundamental reform. The song, allegedly the most widely performed in the world, is over 100 years old, yet Warner-Chappell Music has asserted that it holds copyright in the lyrics and claims royalties in respect of any public performance.

However, U.S. District Judge George H. King in the Central District of California has granted summary judgment to a group of plaintiffs who are taking a class action against Warner-Chappell, holding that Warner-Chappell do not hold any valid copyright in the Happy Birthday lyrics. As it was uncontested that the music was already out of copyright, this paves the way for unrestrained renditions of the Happy Birthday song in restaurants, them parks, recording studios and movie sets across the USA. The full Opinion can be accessed here, courtesy of (document 244 at the top of the list at time of writing).

The party's over for Warner-Chappell, subject to any appeal
Photo by Christian Schnettelker (

The legal proceedings were reported in some detail by the 1709 Blog back in March. Briefly, the plaintiffs (who had been compelled to pay a royalty of some $1500 to Warner-Chappell) took a class action on behalf of those who had been similarly forced to pay such royalties. The judge bifurcated the proceedings, putting the financial and class action aspects on hold, pending a determination of the validity of the copyright.

The history of the Happy Birthday song is shrouded in much uncertainty, and indeed the judge was unable to resolve many of the facts sufficiently clearly to allow summary determination of many issues, holding that only a full trial could resolve the facts.

However, this much is known. Two sisters, Mildred and Patty Hill, wrote another song, Good Morning to All, which had the same melody and the same verse structure as Happy Birthday, some time before 1893. In the early 1900s there were references to the singing of a song called Happy Birthday to You but without full publication of the lyrics. These were however published in full in 1911, and it is unclear 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). It was also unclear whether Patty Hill was the author of these lyrics, the first evidence for this being a claim she made in the 1930s, some 40 years after she claimed to have written the lyrics.

The pre-1893 song sharing the Happy Birthday melody
There was then a series of assignments and agreements covering various copyrights, from the Hill sisters to Clayton F. Summy, from whom Warner-Chappell derived their rights. Again it was unclear to the judge whether the Happy Birthday lyrics were ever assigned to Summy, it being more likely that they had assigned copyright in the melody and in a piano arrangement. Another major uncertainty was whether the copyright registration, on which Warner-Chappel have been relying for many years, in fact was a registration covering the lyrics, the judge holding that it was only evidence of a registration for a piano arrangement of the melody.

Ultimately, the lack of definitive evidence of an assignment of the Happy Birthday lyrics from the Hill sisters to Summy was held to be fatal. No determination was made on the factual question of whether the Hill sisters even wrote the famous lyrics, or whether they still had any common law rights in the lyrics by the time any copyright might have been registered, but these questions became immaterial once the judge had concluded that Warner-Chappell failed to show a valid chain of title from the Hill sisters in any event.

Merpel suspects that an appeal is inevitable, but for now, she welcomes the result and looks forward to caterwauling the Happy Birthday song at every opportunity when she next visits the USA.

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