According to Guiness Book of World Records, “Happy Birthday To You” is the most recognizable song in the English language. Though the song is only four lines long (three of which are the same), it’s become one of the most important and one of the most often-repeated songs.
From a copyright standpoint, it’s also been one of the most controversial. The rights to the song are currently owned by Warner/Chappell Music and they sell licenses to use it in TV shows, movies and restaurants to the tune of an estimate $2 million per year.
But, as I covered back in 2009, there are many who believe the song is not actually copyright protected at all. That it’s true origins put it firmly in the public domain and that the licensing is the product of Warner/Chappel taking advantage of legal uncertainty.
However, it seemed as if the issue would be unresolved, a quirk in copyright law that would forever be the source of lampooning and trivia.
That is, until word came down last week that a filmmaker, Jennifer Nelson, through her company, Good Morning to You Productions, is suing Warner/Chappell over this exact issue. The lawsuit came as something of a welcome surprise to many in the copyright field, who had been wanting clarity on this issue but been unable to get it for a variety of reasons.
So, will restaurants be able to sing “Happy Birthday To You” to their customers (instead of writing their own jingles) and can we end the attempts to write a new birthday song? It’s impossible to say due to how unpredictable litigation is, but it definitely feels like there is reason to be hopeful.
Why Hasn’t There Been a Lawsuit Before?
When the topic of Happy Birthday comes up in conversation, there’s usually one question everyone asks: “Why, if so many experts agree the song is (most likely) in the public domain, do people keep paying licensing fees or just sue to have it declared public domain?”
The answer, unfortunately, is very complex but the big reasons include:
- Cost: As high as the licensing rates for the song are, they are still lower than any potential litigation. Risking a lawsuit just doesn’t make financial sense in most cases.
- Insurance: Large entertainment projects, like movies and concerts, almost always require insurance to be financed and insurance, almost always, requires you to clear all rights to everything in the product.
- Uphill Battle: Warner/Chappell is not only a large company able to defend its claims, but it also has copyright registrations on both the lyrics and piano accompaniment. That services as prima facie evidence of ownership and means the burden of proof is on the plaintiff.
In short, anyone who was going to sue Warner/Chappell faces a long, difficult lawsuit worth almost nothing on the other end (other than freeing up the song for everyone else).
Before this lawsuit, making a move against Warner/Chappell never made financial sense and large non-profits, such as the Electronic Frontier Foundation, typically prefer to target broader issues rather than ones that impact only one song.
So what makes this lawsuit so special? It’s a quirk in the way that the lawsuit was filed that could make it more than worthwhile.
Why This Suit is Different
Nelson is a documentary filmmaker who has been working on a movie, tentatively titled “Happy Birthday”, about the history of the song. Back in March, Nelson sought and obtained a license to use “Happy Birthday To You” in her movie for $1,500.
However, now she’s suing to get that license fee back, alleging that she has evidence that the song is definitively in the public domain (likely evidence turned up while researching or working on the movie). She wants the court to declare the song in the public domain and return her $1,500 license fee.
But the lawsuit goes beyond that. While a $1,500 fee doesn’t come close to justifying what the suit will inevitably cost, Nelson filed the case as a class action suit, also seeking the return of all license fees paid in the last four years, an estimated $8 million in fees.
This amount of money easily justifies this lawsuit and has already been considered as a possible pattern for declaring other songs to be in the public domain if it is successful.
But will it be successful? Litigation is inherently unpredictable and virtually anything could happen. As such, I don’t make predictions about the out come of litigation but I definitely see some good reason to at least be hopeful and to watch this case very carefully.
Analyzing the Lawsuit
From Warner/Chappell’s side, this case is fairly straightforward. Through an acquisition of another company, they obtained the rights to two critical pieces of work:
- A 1924 songbook with the lyrics to “Happy Birthday to You”
- A 1935 piano arrangement for those lyrics
Both of those works are still under copyright and will be for some time. In fact, in the U.S., the arrangement will be under copyright until 2030. This gives Warner/Chappell the chance to collect licenses on the song for a long, long time to come.
However, Nelson claims to have found evidence that the song easily predates those two publications. According to her lawsuit, she has evidence that the song was sung as early as 1900 and that the lyrics were printed as early as 1911.
Furthermore, it is widely known that the melody to the song traces back to an 1893 song “Good Morning to All”, which “Happy Birthday to You” was original sung to the tune of.
In short, Nelson claims that, if Warner/Chappell holds copyright in anything, it’s the very limited 1935 piano arrangement for the song, which was very specific and did not include the lyrics. According to her, all of the other copyrights involved have expired either due to time or lack of re-registration.
But even with the evidence, that doesn’t mean that the case is a lock.
For one, Warner/Chappell actually has the high ground on this case. Since they have copyright registrations on two relevant works, that serves as prima facie evidence of ownership. That means the burden of proof is on Nelson to prove her version of history and that she can’t simply poke holes in Warner/Chappell’s version.
For another, the class action approach in this case has never been tried before, at least to my knowledge, and may or may not succeed. It may be difficult to sustain this lawsuit if the class action damages are not available.
In short, Nelson has an uphill battle here but she already overcame what is likely the biggest hurdle, making the lawsuit practical and has some great information that at least has the potential to put an end to Warner/Chappell’s claims.
While that doesn’t guarantee success, it does give the best chance so far and provides a lot of reason to watch this lawsuit very closely.
Will “Happy Birthday to You” be free to use after this is over? It’s impossible to say right now. However, for the first time there’s a real possibility that it could be soon.
To be clear though, nothing is remotely certain right now and we are literally at the first stages of this litigation. A million things can happen between now and the conclusion. It’s almost a guarantee that Warner/Chappell is going to put up a big fight over this and will not give up quickly or easily.
Still, the fact we have a lawsuit at all is more than what a lot of people expected. Given how long this song has been licensed with dubious ownership, many felt there would never be a challenge to it.
So, win or lose, Nelson may give us some answers with her lawsuit and, at the very least, may provide some clarity on a very muddled issue.