It’s probably come up in pub trivia quizzes. Warner/Chappell Music, Inc has claimed royalties for public performances of one of the world’s most recognised songs: “Happy Birthday”. Sometimes described as the world’s biggest copyright troll, Warner/Chappell is estimated to make over US$2 million a year in royalties from it.
Copyright was registered with the US Copyright Office in 1935 by a company called Summy Co III (renamed Birch Tree Ltd during the 1970s). In February 1938 Summy began granting licensing rights for public performances of the song, apparently with little if any opposition. The copyright registrations were renewed in 1962.
Warner/Chappell Music, Inc acquired Birch Tree in 1998 and acquired six copyrights which protect musical arrangements of the song. There is strong legal opinion that under the current state of affairs copyright will expire in the United States in 2030.
Legal academics have ruminated for a long time about whether the copyright was valid. From time to time learned papers have said the copyright notice was defective, renewal applications hadn’t been filed properly, and there was no conclusive evidence about authorship (the tune and words “Good Morning to All” were reputedly created by sisters Mildred and Patty Hill in 1893, although it wasn’t until 1911 that the familiar “Happy Birthday to You” lyrics were first published).
Enter Jennifer Nelson
In 2013 film maker Jennifer Nelson decided to make a documentary, Happy Birthday, about the song. Hearing about this, Warner/Chappell contacted her and said she would have to pay $1,500 and enter into a licensing agreement to use the song. This infuriated Nelson and the result was a decision to launch a class action against Warner/Chappell to declare the copyright invalid.
Since the initial burst of publicity, the proceedings (Good Morning to You Productions Corp v Warner/Chappell Music, Inc) have dragged on as all good legal proceedings do. Two of the original plaintiffs were dropped, and there were jurisdictional changes. Warner/Chappell lawyers have argued that historical correspondence which is believed to contain important details is protected by attorney-client privilege.
Now what’s been described as pure “smoking gun” evidence has dramatically been unearthed by a University of Pittsburgh law librarian. First, it’s important to know about the Copyright Term Extension Act which was passed in 1998, aiming to give copyright to all works for the claimant’s lifetime plus 70 years. While it was intended to be anything but helpful to the public good (and is also known as the Mickey Mouse Protection Act), it means that any music editions published before 1923 are considered by the act to be in the public domain.
Enter the smoking gun
In 1922 the fourth edition of The Everyday Song Book was published. Some files which Warner/Chappell finally gave to the plaintiffs contained a blurry photo of the Everyday Song Book. There was an indication that the book contained the music and lyrics to “Happy Birthday to You”. The problem was that copies of the song book are now extremely scarce. Someone tracked it down to the University of Pittsburgh’s library storage area. Law librarian Linda Tashbook began to search and emerged triumphantly clutching a copy of the 1922 song book. And Happy Birthday! The book contains lyrics for “Happy Birthday to You” without any copyright notice. The plaintiffs have now filed the following: “The documents prove conclusively that the song is in the public domain, thus making it unnecessary for the Court to decide the scope or validity of the disputed copyright…”
Watch this space.