“Happy Birthday to…wait I can’t finish the song. Nope, can’t do it.

You may not know it, but you could owe Warner/Chappell Music thousands of dollars from all the birthday parties you’ve attended in your life.

A class action lawsuit seeks to change that.

Warner/Chappell Music claims to own the copyright to the 120-year old, 16-word song that is widely credited with being the best known piece of music in the English language. That means anyone who performs the song publicly risks a $150,000 fine if they don’t agree to pay a fee to the music group.

While the company doesn’t actually come after private individuals for singing the song to their 3-year-olds, it technically could. And it does demand money anytime the song is sung on a television show or movie.

Good Morning To You Productions, which is a making a documentary film about the song, filed a class action case Thursday seeking to have the song returned to the public domain. It argues the copyright on the song expired in 1921, and that it should not have been forced to pay $1,500 for the rights to use the song in its documentary.

Warner/Chappell Music is the music publishing arm of Warner Music Group, a company with $2.8 billion in annual revenue. It claims on its Web site to own the copyright to more than 1 million songs.

According to the suit, the song was written by Mildred and Patty Hill and sold to Clayton Summy in 1893 for 10% of the retail sales of the sheet music. A company that Summy founded was eventually purchased by Warner Music Group in 1998, according to the suit. It argues that if Warner/Chappell owns any copyright, it’s on a very limited piano arrangement published in 1935, not on the song itself.

And it seeks to have Warner/Chappell return millions in fees it has been collecting over the years. The suit argues that Warner/Chappell collects more than $2 million a year in copyright fees on “Happy Birthday” alone.

Los Angeles-based Warner/Chappell could not be reached for comment Friday. The suit was filed in Federal Court in New York.

There is more to the story since this started so…

Warner Music Aims to Keep ‘Happy Birthday’ Away From Public Domain

The music publisher points out some key flaws in a lawsuit that looks to establish that “Happy Birthday” belongs to all.

With the English language’s most recognized song at stake, Warner/Chappell Music is not backing down from a bold challenge. On Friday, the music publisher responded in court for the first time to a lawsuit that claims that “Happy Birthday” is in the public domain.

As first covered by The Hollywood Reporter and followed by news outlets around the world, the plaintiff in the case has traced the origins of the popular composition to a schoolteacher named Patty Smith Hill and her sister Mildred Hill in the late 19th century. The plaintiff has provided evidence that much of what we know about the song was already published by the time a copyright registration was attempted. As such, the lawsuit seeks to confirm that ” ‘Happy Birthday,’ if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to ‘Happy Birthday,’ those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935.”

Of course, Warner/Chappell was going to test this assessment, and the publisher is now moving to dismiss the lawsuit.

What won’t be found in the defendant’s motion to dismiss is any substantive discussion about what happened more than a century ago.

It’s the contention of the plaintiffs in a consolidated lawsuit that includes musician Rupa Marya and filmmaker Robert Siegel that the Hill sisters wrote a composition in 1893 titled “Good Morning to All,” and then sold their rights to Clayton Summy in exchange for 10 percent of retail sales. It’s being argued that over the following few decades, variations of the song were sung by children, lyrics were printed, and that by the time a copyright registration was made, the work “consisted entirely of information that was common property and contained no original authorship, except as to the sheet music arrangement itself.”

Warner/Chappell is not challenging this evidence — yet — because there’s a much simpler way to have a judge reject a lawsuit that contends that the music publisher has unfairly extracted license fees over “Happy Birthday.”

First, the music publisher is looking to trim the lawsuit. Warner/Chappell says that claims that it has violated California’s unfair competition and false advertising laws are preempted by federal copyright law. And even if that’s not true, Warner/Chappell says the lawsuit is “bereft of the ‘who, what, when, where, and how’ of any fraudulent conduct.”

Next, the defendant is not only looking to have the lawsuit narrowed by having a judge reject state-based claims, but also wants the judge to limit its scope. If the Copyright Act applies, that means it would be subject to a three-year statute-of-limitations period, which would bar certain plaintiffs like Siegel from being a part of the lawsuit. If that theory holds, the plaintiffs would have to amend their lawsuit. As it stands now, Warner/Chappell says that the demand for declaratory relief should be dismissed or stricken “to the extent they are asserted on behalf of a putative class whose members licensed ‘Happy Birthday to You’ more than three years before the first operative complaint was filed.”

The legal stratagem seems designed to limit Warner/Chappell’s liability and to test the resolve of the plaintiffs’ attorneys. Assuming the judge accepts the defendant’s motion — and that is far from assured — as far as we can tell, there’s nothing here that would stop the plaintiffs from filing a more modest lawsuit that dispenses with the bigger monetary claims in favor of ones that would test the theory that “Happy Birthday” is in the public domain now.

However, class action lawyers usually are in the game for money. Would they continue on the lawsuit if it is merely about establishing rights?

That question won’t be resolved until a judge makes a decision on the motion to dismiss. At the moment, the papers by Warner/Chappell indicate that if the plaintiffs want to keep their big-money claims, they are going to have to do more work. What’s at issue is not what happened a century ago but what has happened more recently.

As the defendant’s papers put it: “Plaintiffs cannot state their fraud-based claims merely on account of Warner/Chappell’s alleged licensing of the Happy Birthday to You copyright and statements about that copyright — even if the copyright were ultimately found to be invalid. Plaintiffs do not allege that Warner/Chappell believed its copyright was invalid or otherwise acted deceptively or in bad faith. Plaintiffs assert legal conclusions as to why they believe the underlying copyright registrations were invalid. Plaintiffs nowhere allege, however, facts showing that Warner/Chappell knew or should have known…”