'Happy Birthday to You': No Longer a Copyrighted Work

It's a song that's famous across the English-speaking world, and undoubtedly the most performed song ever written.

It's a song that's famous across the English-speaking world, and undoubtedly the most performed song ever written. Most recently, it's a piece that has been at the centre of intellectual property headlines around the world. The song is, of course, 'Happy Birthday to You', but what some might not know is that the universal song of celebration was, until very recently, subject to copyright.

Since 1988, copyright holders, Warner/Chappell Music Inc (WCM), had been collecting royalties to the tune of $2m (£1.3m) every year. The company - owned by Warner Music Group, the third biggest corporation in the music business - had been charging royalties every time the song appeared in a TV show, film, advert, or other public performance.

They'd done this largely unabated for two and a half decades until, in 2013, two filmmakers decided to use 'Happy Birthday to You' within their films. Journalist Robert Siegel in association with singer Rupa Marya, and filmmaker Jennifer Nelson, each decided to make films about the song which, naturally, included performances of the song itself. As had happened countless times before, WCM sent the filmmakers a bill for $1,500 (£970) for the right to use the song.

What came next was a high profile, and ultimately successful, legal battle. Marya, Siegel, and Nelson combined forces to put together a case that argued that the song is part of the public domain, and therefore collecting royalties is unlawful.

After a two-year legal case, the plaintiffs successfully argued that the song is in the public domain, and that no further royalties should be collected. In an embarrassing twist for WCM, Mark Rifkin, the lawyer for the plaintiffs in the case, has said that his clients may also look to argue that all royalties collected, dating back to when WCM attained the copyright in 1988, should be paid back.

The decision means that filmmakers, TV producers, musicians, and performers in the USA are now free to use the song in their creations without having to pay for the privilege.

To understand exactly how this landmark ruling came to be, it's important to look back on the history of the song. The melody was written by two Kentucky sisters - Patty and Mildred Hill - in the late 19th Century, with different lyrics put to the tune. Even though the song was commercially viable, the Hill sisters made no claim on it until 1934, when they claimed the rights to the melody, but not the lyrics.

This aspect is key. WCM's claim on the rights half a century later were based on the song's lyrics, not its melody. The claim on the song's copyright later went to the Summy Company, whose owners were bought by WCM in 1988. At no point in the history of the song were the lyrics ever copyrighted (N.B - Unlike in the UK where copyright protection is automatic, the USA has a registered copyright system). In fact, the Hill sisters' original lyrics were 'Good morning to all' rather than 'happy birthday to you'; the more well-known lyrics were applied later on as the song became more popular. So, the 'happy birthday' lyrics had never formed a part of the copyright on the song, therefore WCM's penchant for claiming royalties on the lyrics was an entirely unlawful activity. This particular fact founded the basis of the legal battle to make 'Happy Birthday to You' a public domain work.

Whilst it is important to remember that this decision came from a US Court applying US copyright law, it will still impact upon UK production companies, film-makers and broadcasters alike as it will allow them to utilise the song in any US productions without having to pay royalties. As always with cases of this magnitude, there may be further development over the coming months as WCM contemplate whether to challenge the decision or not.

Wayne Beynon is an IP lawyer at Cardiff and London based law firm Capital Law: www.capital-law.co.uk


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