After a two year court battle in California, the legal challenge
to copyright in one of the most famous songs in the world –
Happy Birthday To You – has come to an end.
The case was brought by a group of filmmakers seeking to challenge
Warner/Chappell's purported ownership of copyright in the song
and also repayment of licence fees they alleged had been wrongly
paid to Warner/Chappell for use of the song. But according to
recently filed US court documents, the parties have agreed to
settle the long running dispute.
Songs are protected by two separate copyrights: copyright in the
lyrics as a literary work and copyright in the underlying music as
a musical work. In the claim against Warner/Chappell, it was common
ground that copyright in the tune expired long ago – the
dispute focussed solely on copyright in the lyrics. Under UK (and
EU) law, copyright in song lyrics lasts until 70 years after the
death of the author so although the song was written over a hundred
years ago, the right is still very much alive.
The terms of settlement have not (yet) been made public, but the
case progressed far enough for the judge to issue a decision that
Warner/Chappell do not own a valid copyright in the Happy
Birthday lyrics. That decision at least seems likely to end
Warner/Chappell's royalty stream from licensing the song for
use in films and television, whatever the terms of
settlement.
The history of the song dates back over 120 years. In around 1893,
two sisters named Mildred and Patty Hill authored a song called
Good Morning To All. The lyrics to Happy Birthday
are set to the melody from Good Morning – whose
lyrics are similar – however, the origins of the Happy
Birthday lyrics are not clear. While there was evidence that
the Hill sisters had assigned copyright in Good Morning,
there was no clear evidence that they had authored the lyrics to
Happy Birthday and, if they had, that they had assigned
copyright in those lyrics to Warner/Chappell's predecessor in
title. The latter was fatal to Warner/Chappell's claim to
copyright. Warner/Chappell had the burden of proving the necessary
chain of title to copyright in the lyrics and, according to the US
decision, they failed on this technical, yet crucial, hurdle.
According to US court documents, Warner/Chappell had been making an
estimated US$2m annually off the back of licence fees for use of
the song in film and television, relying on its purported ownership
of copyright in the lyrics.
With this level of revenue at stake, and given the limited scope of
the judge's decision – he made no findings of fact in
relation to who authored the lyrics – it was not surprising
that someone else emerged from the woodwork with a claim to
copyright in the lyrics in place of Warner/Chappell – in this
case, a US charity with links to the Hill sisters. However, with
the case settled, that claim will not be resolved any time
soon.
With copyright in the lyrics not due to expire in the USA until
around 2030, there continues to be risk in making unlicensed use of
the song. Reciprocal arrangements for the protection of copyright
internationally likely protect the lyrics in Europe, but only until
the end of 2016.
The case highlights the difficulty in evidencing rights in
copyright works created so many years ago and the importance of
establishing an unbroken chain of title – something that
becomes more difficult as the years pass, even more so when you are
looking back from the outer limits of copyright protection, some 70
years after the death of the author.
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