The Guinness Book of World Records said that \u201cHappy Birthday to You\u201d is the most recognized English-language song. There\u2019s no reason at all to doubt that claim. While \u201cSomewhere Over the Rainbow\u201d may be more beloved, there are fewer occasions to sing that song, and it\u2019s a lot harder to sing it well.<\/p>\n
In other words, the song \u201cHappy Birthday to You\u201d is part of everyday life. It would be surprising if friends and families celebrating a birthday didn\u2019t sing it. It\u2019s like the National Anthem before a ballgame, like saying \u201cI love you\u201d on Valentine\u2019s Day, and like saying \u201cgood morning\u201d in the morning.<\/p>\n
If copyrighted songs could become generic in the way that trademarks that become synonymous with the goods whose source they identify, then, \u201cHappy Birthday to You\u201d would be declared as being in the public domain because the song is inherently part of American birthdays, seemingly belonging to everyone and no one in particular at the same time.<\/p>\n
Some people may find it impossible to believe, but, as of now in the records of the Copyright Office and the public performing rights organization ASCAP, the copyright of \u201cHappy Birthday to You\u201d is alive, well, and proprietary to the major music publisher Warner\/Chappell.<\/p>\n
Why write about the song now? Documentarian Jennifer Nelson\u2019s company, Good Morning to You Productions Corp., filed a lawsuit seeking certification of a \u201cclass\u201d of companies and people who have paid for use of the song. The plaintiff is asking for a declaration that the song is in the public domain. Further, among other things, Good Morning to You Productions wants the court to order compensation to those who paid licensing fees for use of the song, when under the plaintiff\u2019s theory the song wasn\u2019t copyrighted.<\/p>\n
Good Morning to You Productions paid a $1500 licensing fee to Warner\/Chappell to include the song in a documentary film about the history of the song. Rather than claim the use was a \u201cfair use\u201d, the plaintiff asserts that the song is in the public domain because the song is so old that any copyright protection has expired. Further, the plaintiff essentially asserts that the copyright history of \u201cHappy Birthday to You\u201d\u2019 is so uncertain that no own owns it.<\/p>\n
The complaint filed in federal court last month provides a detailed history of the development of the song. The plaintiff states that the song, or at least parts of it, go back to 1893 when the children\u2019s song \u201cGood Morning to All\u201d was published. \u201cGood Morning to All\u201d was written by two sisters, Mildred Hill and Patty Smith Hill, containing the familiar melody we know as \u201cHappy Birthday to You.\u201d<\/p>\n
The plaintiff\u2019s lawyers allege that Warner\/Chappell collected about $2,000,000 a year from public performance and other licensing of the song. So, owning this song is like receiving a birthday present pretty much every day of the year.<\/p>\n
What\u2019s significant about the case? First, an important part of popular culture would be declared free for use by anyone if the plaintiff succeeds. Second, the case might provide insights on chain-of-title in copyright cases. Attacking copyright ownership of old works seems to be increasingly frequent. Third, if the highly unusual copyright litigation class action sought is certified by the district court the case might impact other situations that involve a long and complicated copyright history and provenance.<\/p>\n
Someone will play a song about a happy copyright day in court. We just don\u2019t know whose name will fill in the blank space after \u201cDear\u201d will be heard.<\/p>\n
In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark<\/u><\/a> in the firm’s <\/em>Alumni Spotlight publication and his obituary<\/u><\/a> in the <\/em>Boston Globe.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" The Guinness Book of World Records said that \u201cHappy Birthday to You\u201d is the most recognized English-language song. There\u2019s no reason at all to doubt that claim. While \u201cSomewhere Over the Rainbow\u201d may be more beloved, there are fewer occasions to sing that song, and it\u2019s a lot harder to sing it well. In other … <\/p>\n