Class Action Lawsuit Over “Happy Birthday” Copyright Moves Forward
Unbeknownst to many people, “Happy Birthday to You” is a copyrighted song. Even though it is sung every day across the country, using the song in a TV show or movie requires a producer to get a license from the copyright holder, Warner/Chappell Music. Depending on the size of the project, the fees for that license can range from several hundred dollars to five or six figures for its use in a major film.
In a class action complaint filed by Good Morning to You Productions (GMTYP), the plaintiffs allege that the most recognizable song in the English language should be out of copyright and in the public domain.
The lawsuit, which started in the summer of 2013, reached summary judgment last month. The song’s copyright has been owned by Warner/Chappell since 1988, and the studio generates about $2 million annually in license fees just for the rights to use “Happy Birthday To You.”
The song was first published more than 120 years ago. Normally, copyrights expire 70 years after the death of the author, and then pass into the public domain. In this case, however, the melody to “Happy Birthday To You” was composed in 1893 by two sisters, Mildred Hill and Patty Smith Hill. The sisters sold their rights to the song in 1893 to the Clayton F. Summy Company. The Summy Company eventually sold the copyright to the Birch Tree Group Limited, who then sold the copyright to Warner/Chappell for $15 million.
When and where the lyrics and melody were first published together is highly debated. GMTYP and the other class action plaintiffs point to multiple published sources of either the lyrics or the melody from 1907 through the 1930s. Warner/Chappell argues that the first published instance of both the lyrics and the sheet music together occurred in 1935, and that should be the controlling date.
The issue is that works published in the 1930s have a copyright period of 95 years. If Warner/Chappell is correct, their copyright does not expire until 2030. If GMTYP is correct, the work is likely already in the public domain.
At the hearing for summary judgment, GMTYP and other plaintiffs argued that by 1935, the song had been performed and sung for over 30 years, and was by then a published work. In addition, the 1935 publishing was only for one specific piano arrangement of the tune, and was far from the only variation available at the time.
U.S. District Judge, George King, took the case under advisement and it is unknown when he will make a decision to either grant summary judgment or send the case to trial.
Regardless of what the judge rules, licensing and copyright issues can be tricky for many filmmakers. Even if a song or other artistic work is commonly available, don’t assume that it is not under copyright protection. Filmmakers and producers can find themselves in significant legal trouble for failing to secure a license to use the work. Always check to see if you need a license to use any song, quote, lyric, or other published work before you find yourself on the wrong end of a lawsuit.
If you are unsure about your legal rights or obligations, contact the experienced attorneys at Pierce Law Group LLP. Our entertainment lawyers can assist you in securing the rights you need, and can help defend you if you ever end up the subject of a lawsuit.
For more information on our firm or significant legal issues affecting the film industry, sign up for the Pierce Law Group LLP’s free monthly email newsletter. If you would like to discuss a legal issue or case, call (310) 274-9191 to schedule your free initial consultation today.
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