Documentarian wipes out Warner’s $2M “Happy Birthday” copyright

Judge finds it's questionable whether Patty Hill wrote the song at all.

by Joe Mullin October 24, 2015

More than two years after a documentary filmmaker challenged the copyright to the simple lyrics of the song "Happy Birthday," a federal judge ruled Tuesday that the copyright is invalid.

The result could undo Warner/Chappell's lucrative licensing business around the song, once estimated to be $2 million per year. The company is likely to appeal the ruling to the US Court of Appeals for the 9th Circuit.

US District Judge George King held that the two sisters who authored the song, Patty and Mildred Hill, gave the melody and piano arrangements to Summy Co., which was eventually acquired by Warner/Chappell. But King wrote that there's no evidence they ever transferred a copyright on the words.

"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," King wrote. The idea that any of the Hill sisters' deals with Summy resulted in a transfer of the copyright on the lyrics is "implausible and unreasonable."

Good Morning To You

The lyrics of "Happy Birthday" are based on an earlier children's song called "Good Morning To You." There's wide agreement that the Hill sisters sold "Good Morning To You," along with other songs, to Clayton Summy in 1893.

"Good Morning To You" has the same tune as "Happy Birthday." Its lyrics are:

Good morning to you

Good morning to you

Good morning dear children

Good morning to all.

The origin of the "Happy Birthday" lyrics is unclear, but they were written after "Good Morning To You." Newspapers reference the singing of a Happy Birthday song in 1901 and 1909, and "Happy Birthday" appeared in a songbook in 1911, without crediting anyone with the lyrics. 1920's songbooks similarly published the work without a credit, with one exception.

In Warner's telling, the Hill sisters held onto common law rights to the song for decades, then transferred them to Summy, who registered the "Happy Birthday" lyrics in 1935. That's the copyright registration that counts, in their view, which means Warner would have owned the lyrics until 2030, since corporate copyright terms were later extended to 95 years.

Who's the real author?

Lawyers representing plaintiffs, including filmmaker Jennifer Nelson, who made a film about the "Happy Birthday" song, challenged "nearly every aspect of this narrative," the judge noted. Nelson and her lawyers said the lyrics could have been written by someone else, the common law rights had been lost from repeated publications, and there was never a proper transfer to Summy.

King found merit in multiple prongs of the plaintiffs' argument. In his view, it isn't clear what was copyrighted in 1935, since the "new matter" mentioned a piano arrangement—so the Copyright Office may not have seen Summy as trying to copyright the song lyrics at all.

"[T]he registration is flawed in any event," wrote King. "Given this facial and material mistake in the registration certificate, we cannot presume (1) that Patty authored the lyrics or (2) that Summy Co. had any rights to the lyrics."

As to the authorship matter, King thought the situation was muddled enough that a trial might be appropriate. The 1911 and 1920s songbooks were copyrighted by other authors, and Patty Hill never publicly claimed she had written "Happy Birthday" until she was deposed in a 1935 copyright lawsuit. One possibility is that Hill wrote the song, and then waited 40 years to take credit for it.

On the other hand, "a reasonable fact finder could also find that the Happy Birthday lyrics were written by someone else... and that Patty’s 1935 claim to authorship was a post hoc attempt to take credit for the words that had long since become more famous and popular than the ones she wrote for the classic melody," King wrote.

King also ruled that the 1927 songbook that plaintiffs called a "Smoking Gun," called The Everyday Song Book, wasn't the slam dunk they thought it was. "As Defendants point out, there is no direct evidence that the Hill sisters had authorized Summy Co. to grant permission for the publication of the lyrics in The Everyday Song Book."

Three Agreements

The Hill sisters, and later their foundation, struck three deals with the Summy Co. The Second Agreement, described only in pleadings from a 1942 lawsuit, is what allegedly transferred the rights of "Happy Birthday."

The First Agreement didn't include rights to movies or dramatic performances, since at the time of that deal "sound motion pictures were unknown commercially." The Second Agreement remedied that, giving Jessica Hill, sister and heir to Patty and Mildred Hill, an entitlement to 50 percent of revenue from performance of the works worldwide.

From what little is known about the Second Agreement, the idea that it related to the lyrics "is not supported by any explicit description of the agreement" and is "implausible," King wrote. Warner/Chappell's argument that the lyrics could have been transferred in the Third Agreement is "circular," he concludes. The Third Agreement is in the court record and "contains no reference to the transfer of the 'Happy Birthday' lyrics."

That means Summy Co. never got the rights to the lyrics, and they're now in the public domain.

The lawsuit also has requested restitution of the millions in licensing fees paid by various companies and individuals over the years. A spokesperson for the plaintiffs told The Associated Press that issue will be resolved at a later time.

"We are looking at the court's lengthy opinion and considering our options," Warner/Chappell told AP in a statement.

Jennifer Nelson had to pay a synchronization license of $1,500 to Warner/Chappell to include the song in her movie. Another artist who was added as a named plaintiff later, musician Ruypa Marya, told AP she had to pay $455 to include "Happy Birthday To You" in a live album in which her bandmates sang the song to her.

"I hope we can start reimagining copyright law to do what it's supposed to do—protect the creations of people who make stuff so that we can continue to make more stuff," Marya told the newswire.