Happy Birthday Is In The Public Domain? Well, How Do I Get My Money Back?

Stephen Carlisle September 25, 2015

On September 22, 2015, Judge George H. King granted partial summary judgement to Plaintiffs seeking a declaration that the song Happy Birthday was in the public domain. ¹ News agencies rushed out to trumpet the news that the Judge’s ruling meant Happy Birthday was in the public domain. ²

Except that the Judge did not rule that Happy Birthday was in the public domain. What he in fact ruled could be far more damaging to the interests of Warner Chappell Music.

Happy Birthday is based upon a previously existing song, Good Morning To All. ³ It was composed by two sisters, Mildred and Patty Hill, somewhere around 1893. They assigned their interest in the song to the music publishing company Clayton F. Summy, ⁴ and in 1893, he published the song in a collection titled Song Stories for the Kindergarten. ⁵ There is no dispute that the copyright in Good Morning To All expired in 1949, and the familiar melody is now in the public domain. ⁶

The origins of the well-known lyrics to Happy Birthday are far less clear. The lyrics first appeared in 1911, in the book The Elementary Worker and His Work. ⁷ They appeared without any attribution as to the author, only with a note that the lyrics were to be sung to the melody of Good Morning To All. ⁸ So at least as early as 1911, someone had added the Happy Birthday lyrics to Good Morning To All. Just who that person was is a serious point of contention.

Patty Hill claimed later (in fact over 40 years later), that she had written the Happy Birthday lyrics, around the time that Good Morning To All was originally composed. ⁹ It was not until her 1934 deposition in a lawsuit alleging that the producers of a musical had infringed the copyright in the Good Morning To All melody did she make this assertion. ¹⁰ Mildred Hill, to co-writer of Good Morning To All a/k/a Happy Birthday died in 1916, ¹¹ and thus was not available to give corroborating testimony.

This is where things start to get sticky for Warner-Chappell Music. The Happy Birthday song was published in 1922 in a book titled The Everyday Song Book. ¹² It was published as one song, Good Morning and Birthday Song with a legend that is was printed by “Special permission through The Clayton F. Summy Co.” ¹³ If Patty was indeed the author of the Happy Birthday lyrics and had granted the right to the Summy Company, this means that Happy Birthday would have entered the public domain either by being published without copyright notice, or by having its statutory copyright expire. So Warner must contend that Happy Birthday was not part of the 1893 grant to Summy. ¹⁴

The Summy Company filed two copyright registrations for Happy Birthday. The registration on which Warner-Chappell relies is a simple piano arrangement with the lyrics to Happy Birthday printed on the sheet music. This is the registration which Warner-Chappell has asserted for years as the first registration for Happy Birthday which fixes the date of copyright for the song as commencing in 1935.

The problems noted by the Judge are several. The registration is an “Application for Copyright for Republished Musical Composition with New Copyright Matter.” ¹⁵ The new matter is described as being “Arrangement for easy piano, with text.” ¹⁶ According to Warner Chappell, the reference “with text” means the new lyrics are being registered for copyright for the first time. ¹⁷ The problem is that the author of the new material is identified as “Preston Ware Orem employed for hire by Clayton F. Summy Co.” ¹⁸ It is clear that Mr. Orem is not the author of the words to Happy Birthday since the lyrics were first published more than 24 years prior to this registration. Since Warner-Chappell contends that Patty Hill is the author of the lyrics to Happy Birthday, the failure of the Summy Co. to list her as the author of the “new material” being registered is fatal to Warner-Chappell’s contention.

“If, as Defendants assert, the new matter being registered included the lyrics, then contrary to the registration certificate, Mr. Orem could not be the author of the new matter. Conversely, if Mr. Orem were the author of the new matter, then the lyrics could not have been a part of the new registration.” ¹⁹

Warner-Chappell’s last hope is to show that somehow Patty Hill retained her common law copyright and transferred it to Summy. There were three separate agreements between the Hill parties (Jessica Hill taking over her deceased sister’s share). Without rehashing the Court’s findings, it is sufficient to say that the Court ruled that the lyrics to Happy Birthday were never transferred to the Summy Company. ²⁰ In so ruling, the Court noted that even though decades later, Patty claimed to be the author of the lyrics:

• They never sought to protect the Happy Birthday lyrics as their own, despite numerous publications by third parties
• They never sought copyright registrations for the lyrics
• They never sued anyone for infringing the lyrics
• The Summy Company sued several times for infringements of the melody to Happy Birthday but never for the lyrics, and never asserted the 1935 registration by which Warner-Chappell now claims its rights ²¹

So, even if Patty Hill wrote the lyrics to Happy Birthday (a fact which is in dispute and not resolved here), Warner never acquired her rights. Therefore, since 1988, when Warner-Chappell acquired Birch Tree Group, the successor to the Summy Company, ²² they have been charging and collecting fees for a copyright that they did not own. And even prior to that time, ASCAP has been collecting performance fees for a song that was not part of their licensed repertoire.

What now? As reported by the Los Angeles Times:

“The plaintiff’s attorneys have said that they will move to qualify the lawsuit as a class-action in an effort to recoup millions of dollars in licensing fees Warner/Chappell has collected on the tune over the years.

Mark C. Rifkin, one of Nelson’s attorneys, said the plaintiffs will pursue Warner for royalties paid since “at least” 1988, and could also ask the company to repay royalties that have been collected all the way back to 1935. It’s not clear how much money that could entail.

A third of the profits from licensing the song still go to a designated charity of the Hill family, the Association for Childhood Education International, which promotes global education efforts for children and the professional growth of educators. The association’s 2012 nonprofit tax return, the most recent available, indicates it received $754,108 in royalties.” ²³

That will be one big class, if certified. Imagine all the movies and television shows which have sung Happy Birthday over the past 80 years. Personally, I have a former client who would be part of that class, since Warner-Chappell insisted on taking a royalty on Happy Birthday even though the lyrics were never sung on the recording.

But would the Statute of Limitations apply? Would the doctrine of laches (you waited too long to sue) apply? This is not a copyright infringement action, so the three year lookback would not apply, nor would the Supreme Court’s decision in Petrella ²⁴ apply.

Yet, the logic of Petrella might prove a solid basis to impose liability. What we have here is a continuing tort (a wrong), e.g. demanding payment for something that you have no right to demand payment for. So each time that Warner-Chappell demanded a license fee, a new tort was committed.

And what about ASACP? This one is tougher. ASACP is not a party to this lawsuit. Plus, since by the terms of the consent decrees ASCAP must license the entire catalog, there is no way to separate out the royalties for Happy Birthday as opposed to other songs in the catalog. In other words, the payment would be the same, whether Happy Birthday was part of the catalog or not. So, perhaps Warner-Chappell might be compelled to repay the “publisher’s share” of the royalties back to ASCAP, but that does not mean that ASCAP would refund the money to the licenses holders. It might mean only a redistribution to the members.

And what of the rest of the English speaking world? In Canada, being a life plus 50 years jurisdiction, Happy Birthday is already in the public domain. But what about England? According to this article from the BBC:

“Despite the ruling, the song still remains under copyright in the UK and other countries – and caution should be exercised over its use, says intellectual property lawyer Mark Owen.

“’As elements of the song are still potentially within the maximum copyright term it may be the case that someone still owns some rights to it,’ said Mr. Owen, a partner at law firm Taylor Wessing.” ²⁵

Presumably, this is because England adheres to the life plus 70 years regime, and Patty Hill, having died in 1946, ²⁶ her rights will last until December 31, 2016. Yet, this is not the end of the analysis. The Berne Treaty in Article 7, Section 8 provides for the rule popularly described as the “rule of the shorter term.” The text of which is:

“In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.” ²⁷

So, the copyright in the melody to Happy Birthday, having entered into the public domain at the end of 1949, would be in the public domain in England, unless it opted out of the rule of the shorter term.

This points the way to some measure of salvation for Warner-Chappell. If (and it’s a mighty big if) Patty Hill did write the lyrics to Happy Birthday and she did not transfer them to the Summy Company, as this ruling holds, then she, or more accurately, her heirs still own them.

This is due to the savings clause of the Copyright law, found at Section 303, which states:

‘Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302.”

In other words, life plus 70 years after death. In Patty Hill’s case, December 31, 2016. So, if Warner-Chappell has the nerve and the cash to spend, it could track down whomever the proper heirs of Patty Hill are and purchase the rights from them. They might still have slightly over one year to re-stake their claim to Happy Birthday.

This would, of course, not affect the payments they have already taken in without holding the rights to demand a licensing fee. So, instead of singing Happy Birthday, it’s more likely Warner-Chappell is singing the blues.