The "Happy Birthday" saga: when it may have been better not to have sued?

This Kat, like many other Kat readers, read with a sense of relief Merpel’s report that the copyright claim by
Warner-Chappell Music in the song—Happy Birthday- has been rejected on the technical but legally dispositive ground that the necessary chain of title in the hoary song had not been proven. For this Kat, the really interesting question that emerges from this decision is why there seems to be such a widespread sense of satisfaction in the ultimate result. It is not simply that justice has been served; after all, a lot of copyright decisions have been resolved on the finding that the moving party failed to show good title. Moreover, the general public seldom gets excited by the nitty-gritty of copyright transfers.

No, the elation has almost nothing to do with the decision, but everything to do with what the case may say about how the public views the acceptable bounds of enforcing one’s alleged copyright. In a word, there may be some cases that so offend the public that it would have been better that the suit not have been brought. This is not to say that Warner-Chappell Music did not have the right to bring the action. Of course it had the right to do so. Still, an argument can be made that the action was not in the best interests of the IP Community writ large because of the negative light that it casts on the enforcement of IP rights. Do this enough times, anger the public often enough, and public support for the IP system may begin to be called into question. The anti-establishment political movements that have sprung up on both sides of the Atlantic suggest that this is not a wholly fanciful concern. Against this backdrop, perhaps there are instances where to interests of the IP Community need to be taken into consideration in the decision whether or not to bring suit.

The starting point for this Kat is that the nature of IP law and practice has created a unique sense of a trans-border professional community, unlike any other grouping engaged in the practice of a discrete body of law, i.e., there is an IP Community. This Kat has, during much of his intellectual life, been influenced by Emil Durkheim, one of the founders of modern sociology, who posited the existence of institutions as a separate focus of analysis and inquiry. There are “social facts”, seen as "beliefs and modes of behaviour instituted by the collectivity". It was he who coined the notion “collective consciousness”. While perhaps not strictly derived from Durkheim’s system, this approach seems applicable to posit the existence of an IP Community residing within the larger public. Kat readers may agree or disagree about this, with or without Durkheim in the background. Whatever one’s view, allow this Kat to proceed on that basis.

Assuming the existence of the IP Community, a primary concern is self- preservation (Durkheim was nothing if not a radical conservative in his thinking). Remember that IP rights (and the IP Community that has grown up around these rights) exist due to the beneficence of the greater public (read legislators and courts), which has conferred exclusive rights upon members of the IP Community.

The major existential threat to the IP Community is the loss of perceived legitimacy in the eyes of the public. As suggested above, one way for this to occur is by overreach in the enforcement of IP rights. By overreach we mean some action that simply offends the reasonable sensibilities of the wider public (after all, IP is not about life and death issues). As for copyright, seeking to claim, rightly or wrongly, exclusive rights in the lyrics to the song Happy Birthday, a musical ditty that reaches deep into the psyche of virtually everyone, may be such an example. The general public may not understand or even care about the analytical fine points in the debate between high protection and low protection of copyright, but it instinctively senses that something seems out of kilter when claims of exclusive rights in Happy Birthday are being put to the legal test. In such an instance, it is suggested, the public legitimacy of copyright may have been weakened, even if the ultimate legal result is aligned with perceived public sentiment.

This Kat can already hear the pushback: “Come on Kat, your appeal to the collective that you call the IP Community has no place in legal considerations generally and especially regarding intellectual property, which is all about individual creation and invention. As well, how do you propose to identify this IP Community of yours and do we know when basic interests of the public being challenged by the acts of a member of the IP Community?” A partial answer is to recall the words of United States Supreme Court Justice Potter Stewart in seeking to find a working characterization for what constitutes obscenity —“I know it when I see it.” Sense and sensibility in equal measure will both play a part. Because the concern raised is preservative in nature, we will know if there is any merit in the suggestion only after the fact. That being the case, perhaps we need to add a bit of faith as well.
The "Happy Birthday" saga: when it may have been better not to have sued? The "Happy Birthday" saga: when it may have been better not to have sued? Reviewed by Neil Wilkof on Friday, September 25, 2015 Rating: 5


  1. The article does not clearly draw a distinction between the IP legal representatives and professionals (the "IP Community"?), and IP rights holders.

    What is in the interests of a particular IP rights holder is not necessarily aligned with the interests of either group as a whole.

    Is the article suggesting that the proprietor should take account of potential impact on the IP Community, a community to which he may not even belong (depending on how this is defined)? This seems like a long shot, given the well known problem of the tragedy of the commons.

  2. This blog post makes it sound like Warner Chappell, the copyright holder, was the one who filed the lawsuit. That's not what happened. The users filed the lawsuit, as a declaratory relief action to have the copyright invalidated. All of the named plaintiffs, as part of this purported class action, had actually paid for a license and the suit, apart from declaratory relief, sought recoupment of the licensee fees.

  3. We saw similar issues arise in Australia in a case relating to infringement of copyright in the well-known round "Kookaburra Sits in the Old Gum Tree" by the flute riff in the almost equally well-known song "Down Under" by the band Men at Work (EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47).

    The problem here was that the "general public", i.e. non-members of the "IP Community", felt proprietorial about Kookaburra and also (though perhaps to a lesser degree) about Down Under (particularly in view of its role as the anthem of Australia's famous America's Cup win in 1983... yes, I know, ancient history - get over it).

    However, the problem with accepting your premise, Neil, is that the logical conclusion would be that the most valuable copyrights are those that should never be enforced! Popular works that are "adopted" by the general public would become victims of their own success, with the very fact that people want to reproduce them (including for their own commercial gain) becoming the primary reason why the copyright holder should refrain from enforcing its rights.

    I dare say that if the claimant here was the estate of the original author, and not a huge multinational music conglomerate, we would be having a different conversation (not least because the chain of title would be less dubious, but I trust you know what I'm getting at).


  4. Mark Summerfield,
    Good point. How about a class action to recoup our share of Coca-Cola's trademark profits? Multi-national? Tick. Popular with the people (most places)? Tick. Where do I sign up?
    Can't lose!

  5. Surely Warner-Chappell was the defendant, not the plaintiff, so they didn't get a choice about whether to sue? The plaintiffs were the producers of a film, who had been charged for using the song.

    I think the general public's satisfaction stems not from a general anti-copyright feeling, but from a widely-held belief that the song was so old that any copyright would have expired long ago.

    It does seem strange that Warner-Chappell claimed that the US copyright expiry date was governed by a 1935 copyright registration, when the tune was written sometime before 1893, and the words were also clearly in use long before 1935. Before the present case no-one seemed to know when the words were written, or who by. Warner-Chappell claim they were written by Patty Hill, but has that been proved? The present US decision (linked from Merpel's previous report) merely says that it raises genuine issues of material fact.

    How does this affect the copyright in Europe? The 1935 US registration is obviously irrelevant. Patty Hill died in 1946, so to the extent that she was an author or composer, the copyright in Europe expires on 31 December 2016.

    As to whether Patty wrote the words, see the above uncertainty.

    Patty's sister Mildred was the musician of the two, and it's undisputed that she composed the tune. But she died in 1916, so if she was the sole composer then in Europe the copyright in the tune would have expired long ago.

    However, from the Background section of the present US decision, both parties accepted that Mildred wrote the tune with help from Patty. The decision quotes a 1935 deposition in a previous action, in which Patty explained this:
    "It would be written and I would take it into the school the next morning and test it with the little children. If the register was beyond the children we went back home at night and altered it and I would go back the next morning and try it again and again until we secured a song that even the youngest children could learn with perfect ease"

    If this is enough to make Patty a joint composer with Mildred, then maybe the European copyright in the tune still has 15 months to run.

    Note, however, that as regards the tune the film producer plaintiffs had no reason to dispute Warner-Chappell's version of events. Both sides accepted that the US copyright in the tune had entered the public domain long ago. And that same 1935 deposition (made many years after the events described) is one part of the "genuine issues of material fact" noted by the US court with respect to the words.

  6. This IP practitioner shares the public's sense that copyright embodies an overreach, particularly in its duration. It was bad enough under the life + 50 years regime of UK domestic legislation, but EU harmonisation in 1996 moved the term in precisely the wrong direction.

    I am trying to put my finger on why I have shifted, over the decades, from being an enthusiastic defender of copyright to having a more jaundiced view of the law now. I think it is in good measure down to the behaviour of the music industry. When LPs gave way to CDs, the price went up - because of the high cost of manufacture of the new media, we were told. Costs then tumbled, but prices stayed high. Then came downloads, with a near zero cost of sale. Rather than embrace that technology, the industry tried to stop it. And all the time, the actions of a protective, conservative and possibly quite inefficient business were protected by strengthening copyright laws, so why should they adapt?

    I, for one, feel somewhat shafted. I can, and do, still noisily defend the patent system, with its true monopolies and 20 year term. But life + 70 years for a quasi-monopoly? Nah, not any more.

  7. "(after all, IP is not about life and death issues)"

    No, it's much more important than that!

  8. As others have pointed out, Warner Chappell was defending its claim to hold copyright, and was the defendant in this case.

    But leaving that aside, this is not the biggest problem with this post.

    Do this enough times, anger the public often enough, and public support for the IP system may begin to be called into question.

    Would the public be as angry if they knew that the royalties of 'Happy Birthday' go to charity? Or that we don't actually get arrested for singing 'Happy Birthday', as The Times and other media suggested. I suspect not.

    There are great dangers to ventriloquising what the public think or feel, and invoking the will of the mob. And apparently, even when the mob is ignorant, its views should still be heeded:

    The general public may not understand or even care about the analytical fine points in the debate between high protection and low protection of copyright, but it instinctively senses that something seems out of kilter when claims of exclusive rights in Happy Birthday are being put to the legal test.

    So "Instinctive sense" aka intuition is now a valid basis for jurisprudence. Really?

    It's dubious enough to ventriloquise what the mob thinks or feels, even more so when the views are based on ignorance or misinformation greater importance than they deserve.

    The anti-establishment political movements that have sprung up on both sides of the Atlantic suggest that this is not a wholly fanciful concern.

    They may style themselves as "movements", but they are not popular, and consistently fail the democratic test.

    Neil invites us to agree that rightsholders should be bullied out of exercising their legal (and human) rights by fear of a mob with pitchforks. Thankfully we stopped creating legislation based on amorphous grievances, or raw anger, after the Enlightenment.

    But perhaps we're already in a post-Enlightenment, or post-rational age, and we should spend more time intuiting than lawyering. That would seem to be the implication of this post.


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