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NOT THAT YOU CARED BEFORE, BUT NOW YOU CAN SING “HAPPY BIRTHDAY” AT A PARTY AND NOT WORRY ABOUT BEING SUED

Updated: May 28


By Manotti L. Jenkins


Happy Birthday to you

Happy Birthday to you

Happy Birthday dear [NAME]

Happy Birthday to you





Believe it or not, those simple lyrics have been the basis for Warner/Chappell Music, one of the defendants in the case, Rupa Marya, et al. v. Warner/Chappell Music, Inc. et al. (C.D. California), to extract millions of dollars in copyright licensing fees from entities wanting to use or publicly perform the lyrics over the past several decades. And to strain your credulity even further, I should also mention that Warner/Chappell Music’s gravy train came to a screeching halt this week over its decision to require one such entity to pay a mere $1,500 for a synchronization license to use those lyrics. That entity, Good Morning to You Productions Corp., and others (the “Plaintiffs”) decided to file a class action lawsuit against Warner/Chappell Music and another company, Summy-Birchard, Inc. (the “Defendants”), seeking a declaration that the copyright registration covering the Happy Birthday To You (“Happy Birthday”) lyrics is invalid.


In a relatively complex decision involving many historical facts dating back prior to 1893 and copyright principles governed by the 1909 Copyright Act, the California federal court issued its Memorandum Opinion and Order in the case on September 22, 2015. The Plaintiffs won the case and are demanding that the Defendants be compelled to return the “‘millions of dollars of unlawful licensing fees’ they have collected by wrongfully asserting copyright ownership in the Happy Birthday lyrics.”


The gravamen of the dispute was Defendants’ claim that a certain copyright registration bearing No. E51990, filed by a predecessor company to defendant Summy-Birchard, Inc., covered the Happy Birthday lyrics, and that they obtained that registration, which gave them the rights to extract licensing fees from entities who have sought to use and publicly perform the lyrics. The Plaintiffs argued that the E51990 registration did not cover the Happy Birthday lyrics and thus never granted any such rights to the Defendants, and further that the lyrics had entered the public domain decades ago as a result of the failure by the creator of the lyrics to properly protect their creation under the applicable copyright statute. Both sides filed motions for summary judgment against the other’s arguments, requesting that the California federal court rule in their favor as a matter of law, on the basis that no genuine dispute of facts existed on the key issues so as to require a trial.


At the risk of boring you to tears, I will discuss an abbreviated history of the creation of the Happy Birthday lyrics, as captured by the Central District of California. Prior to 1893, two sisters, Mildred Hill and Patty Hill, wrote another song having the same classic melody as the Happy Birthday song, which other song was entitled, Good Morning To All (“Good Morning”). The first historical reference to the Happy Birthday song appeared in print in a 1901 article, although the lyrics were not included in the article, and in 1909, a prayer songbook also made a reference to the Happy Birthday song without publishing the lyrics. The first publication to disclose the full lyrics to the Happy Birthday song was a 1911 book, which did not credit anyone with authoring the lyrics, but did mention that the song shared the same melody with the Good Morning song. After 1911, the full lyrics of the Happy Birthday song appeared in other publications – a 1924 book and a 1928 book – neither of which credited anyone with creating the Happy Birthday lyrics. In the early 1930’s, the Happy Birthday song appeared in a series of movies, and in 1933, the song was publicly performed in a play.


The legal significance of the previous facts is that, under the 1909 Copyright Act, which was then in effect, a person secured a federal copyright by publishing a work with proper notice. Before that publication, the work would be protected by common law copyright. However, if the work was published without notice, then the author failed to obtain a federal copyright and lost all common law rights in the copyright. Rupa Marya, et al. v. Warner/Chappell Music, Inc. et al. (citing Twin Books Corp. v. Walt Disney Co., 83 F.3d 1162, 1165 (9th Cir. 1996) (“When a work was published for the first time, it lost state common law protection. The owner could, however, obtain federal protection for the published work by complying with the requirements of the 1909 Copyright Act. If the owner failed to satisfy the Act’s requirements, the published work was interjected irrevocably into the public domain precluding any subsequent protection of the work under the 1909 Copyright Act.”)


In 1934, Mildred’s daughter Jessica, who had obtained certain rights as her mother’s heir after Mildred died, filed a copyright infringement lawsuit against the producers of the 1933 play that publicly performed the Happy Birthday song, mentioned above. The basis for the lawsuit, however, was not that the producers of the play had infringed any rights in the Happy Birthday lyrics, but instead that they infringed the copyright in Good Morning, which shared the melody with the Happy Birthday song.


During that 1934 litigation, Patty for the first time claimed, in her deposition, that she had written the lyrics to the Happy Birthday song around the same time that she and her deceased sister created the Good Morning song, i.e., prior to 1893. In 1935, the Clayton F. Summy Company (the “Summy Co.”), a predecessor to defendant Summy-Birchard, Inc. in the present case and whose founder and name sake had established a business relationship with the Hill sisters previously, registered copyrights to two works entitled, “Happy Birthday To You.” One of those copyrights bears Reg. No. E51990, which is the primary registration at issue in the present case.


The California federal court did not have the benefit of any contractual agreements from 1935 or before between the Hill sisters and the Summy Co. concerning the publication and registration of Copyright Reg. No. E51990. The court had to rely on evidence presented by the parties of a 1942 federal lawsuit filed by the Hills’ foundation against the Summy Co. That case involved three agreements between the foundation and the Summy Co. Among those three agreements, the Defendants primarily staked their claim that Copyright Reg. No. E51990 covered the Happy Birthday lyrics on the second agreement.


According to the foundation’s allegation in the 1942 case, the second agreement granted Summy Co. “a number of licenses” for “various piano arrangements of the song variously entitled ‘GOOD MORNING TO ALL’ or ‘HAPPY BIRTHDAY TO YOU.’” In its answer to that allegation, the Summy Co. admitted that the second agreement assigned “various piano arrangements of Good Morning To All” to Summy Co. Thus, neither of the parties in the 1942 case contended that the second agreement conveyed any rights pertaining to the Happy Birthday lyrics.


After the California court went through an extensive analysis of the facts and sub-issues in the case, the court summarized the critical issue, as alluded to above:


The distinction between the music and the lyrics [of the Happy Birthday song] as copyrightable elements is critical in this case because [both sides] agree that the Happy Birthday melody was borrowed from Good Morning and entered the public domain a long time ago. The Parties disagree only about the status of the Happy Birthday lyrics. Defendants contend, in brief, that the Hill sisters authored the lyrics to Happy Birthday around the turn of the last century, held onto the common law rights for several decades, and then transferred them to Summy Co., which published and registered them for a federal copyright in 1935. Plaintiffs challenge nearly every aspect of this narrative. They argue that the lyrics may have been authored by someone else, the common law copyrights in the lyrics were lost due to general publication or abandonment before the lyrics were published, and the rights were never transferred to Summy Co.


Although the court found factual disputes with respect to many of the competing arguments between the two sides, the court ruled that there was no evidence supporting the Defendants’ position that Copyright Reg. No. E51990 covered the Happy Birthday lyrics or that the second agreement between the Hills and Summy Co. granted rights to such lyrics to the Summy Co. The court found particularly persuasive the evidence presented by the 1942 litigation, pointing out that the Hills and the Summy Co. both pled in that litigation that the second agreement transferred rights in “piano arrangements” and not any lyrics. The court wrote, quite sarcastically: “Obviously, pianos do not sing.” The court concluded its decision as follows:


Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics. Defendants’ speculation that the pleadings in the Hill-Summy lawsuit somehow show that the Second Agreement involved a transfer of rights in the lyrics is implausible and unreasonable.


As such, proceed with singing the Happy Birthday song at every birthday party you attend without the fear of being sued (but be careful singing the Stevie Wonder version).

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