As someone who is still in birthday mode (#VirgosRule), this news was quite entertaining. First let me preface this with the fact that I was totally unaware that the “Birthday Song” was still under copyright. It’s like the oldest song known to mankind, but people have had to get clearance from Warner/Chappell in order to use the song in any of their works. Can you imagine? A song that is over centuries old is still under copyright. Even more so, that Warner/Chappell has been making money off of it for almost every use you hear. And I’m sure you hear that song a lot!
A federal judge recently ruled in favor of a filmmaker on summary judgment that Warner/Chappell never had a valid copyright in the lyrics to the “Birthday Song” and that they have wrongfully obtained millions of dollars in license fees (approximately $2 million per year) for their purported ownership in the copyright of the song lyrics. Plaintiffs in this case dispute who Warner/Chappell contends wrote the song lyrics, that the lyrics became part of the public domain, and that the rights were never transferred to the entity Warner claims to have received them from.
Warner/Chappell attempts to rely on a 1935 copyright registration by Summy Co. for a musical composition titled “Happy Birthday to You”. The problem with relying on the registration is tri-fold: (1) the copyright office no longer has a copy of the deposit of the work on file (apparently the Library of Congress gets rid of some of its deposits from time to time – wink); (2) the registration form is too vague as it only states that it was an application for a “republished musical composition with new subject matter” with the new subject matter being listed as “arrangement as new piano solo, with text”; and, (3) “republished” denotes borrowed, which means a derivative work for which someone else has the original copyright in the matter. Warner contends that the “text” is the lyrics to the “Birthday Song”, while Plaintiffs and the Court disagrees, especially since the author listed on the registration is not credited for the lyrics to Happy Birthday.
Although a copyright registration certificate is generally prima facie evidence that a person holds a valid copyright in a matter, here, the court found that there was a material mistake in the registration certificate and Warner/Chappell can not rely on it in this case. Warner/Chappell is essentially asking for the court to find that because the original creators of the musical composition of the Birthday Song assigned their rights to Summy Co., who assigned them to Warner/Chappell, that the song lyrics were also assigned along with it, but the court rejects this notion because there is simply no evidence to support it.
This is just the beginning of a very lengthy battle, especially since Warner/Chappell stands to lose millions of dollars in past profits that plaintiffs are urging Warner/Chappell return to anyone who has paid licensing fees for their use of the Birthday Song in any of their works. I hope for Warner/Chappell’s sake, they figure out a way to make that copyright theirs, because a ruling in Plaintiff’s favor could take them down.
Lerae Funderburg, Esq. is the Managing Attorney at Funderburg Law, LLC, an Atlanta based entertainment law firm. Lerae has almost 10 years of experience in entertainment law in both music law and film law. As an entertainment lawyer and blogger, Lerae keeps her viewers and subscribers up to date with entertainment legal news, especially in the areas of music. If you are local to Atlanta, call and set up a consultation! She would love to hear from you!