In a United States copyright dispute it has been decided by a Federal Judge that Warner/Chappell Music does not own the copyright rights to the song "Happy Birthday to you". It just so happens that this is the most profitable song ever produced.
The copyright was challenged by an independent film company called Good Morning to you Corporation (GMC). GMC likened this legal battle to that of David and Goliath: the little guy taking on a corporate giant.
Warner required royalties from anyone who earned profit from singing or performing the song. It was also technically possible for Warner to demand royalties whenever the song was sung in public as part of a business, for example: restaurant staff singing happy birthday to a customer. Due to this threat, several chain restaurants have resorted to putting a creative twist on the well-known song.
The song was originally penned in the 1883 by two school teacher sisters known as the Hill Sisters. However, the words were not "Happy Birthday" but "Good Morning to all". In 1893 the sisters assigned their rights in a manuscript containing "Good Morning to all" to a publisher, Clayton F Summy Co.. The song was published in several Kindergarten books. It was not until 1911 that the lyrics "Happy Birthday to you" appeared in publications. Although reference was made to the two songs using the same tune no reference was made to the authorship of the "Happy Birthday" lyrics. In 1935 Summy Co., registered copyrights to two works entitled "Happy Birthday to you". There have been several cases since between the Hill sisters and Summy Co. and none of them makes clear whether or not the copyright of the lyrics was assigned. In spite of this Warner has earned an estimated $2 million in royalties every year since acquiring the copyright rights from Summy Co. in 1988.
GMC took issue to the fact that they were charged $1500 by Warner for making a film about the song which included a clip of it. They argued that Warner never acquired the rights to the lyrics "Happy Birthday" and therefore should pay back the royalties earned. The plaintiffs also argued that the song should be in the public domain for public use. The Judge decided in favour of the plaintiffs, ruling that Warner only ever acquired the rights to the musical arrangements and not the lyrics.
So is "Happy Birthday to you" now in the public domain? The answer is perhaps not as clean cut as it might initially seem, if the rights in the lyrics were never assigned to Warner. Does this mean that somebody else out there has a claim to these famous lyrics until 2016 (EU) or 2030 (US)? Considering the profitability of the song it would be unsurprising if someone, perhaps a Hill Sister relative, stakes a claim before long.
MacRoberts advises on various aspects of intellectual property law, including copyright applications, registrations and disputes. For further information, please get in touch with David Flint or David Gourlay.
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