The song’s current copyright is not valid, a US court has ruled because its not for the words but specific music arrangements.
Warner/Chappell, the company collecting royalties for the world’s favourite song ‘Happy Birthday To You’ has lost a court case that challenged its copyright stranglehold on the song.
In 1988, Warner/Chappell acquired the original copyright from 1935. But judge George King ruled that the original copyright was only granted for specific arrangements of the music, not the song itself. Hence the company does not hold a valid copyright to the song.
The tune was composed by two Kentucky sisters in 1893. Mildred and Patty Hill called their version ‘Good Morning To All’, which later evolved into the song that is popularly sung at birthday parties around the world.
Warner/Chappell had been collecting fees since 1988, when it bought Birch Tree Group, the successor to Clayton F Summy Co, which claimed the original copyright.
It is thought to have made USD 2 million a year by charging every time the song was used in a film, television episode, advertisement or other public performance.
The music sheet from the original composition. Image: University of Louisville
The case against the publishers was launched in 2013 by Rupa Marya and Robert Siegel, who are making a film about the song. When Warner asked for USD 1,500 for the right to use Happy Birthday To You in the film, Marya and Siegel argued the song was in the public domain and should not be subject to copyright fees. Judge King ruled that Summy had never acquired copyright to the song’s words.
“The Hill sisters gave Summy Co the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics,” he said.
“We did exhaustive historical research and none of it showed that the publisher owned anything other than copyrights to four very specific piano arrangements,” said a lawyer for the plaintiff.
“In the second part of the case, which hopefully we’ll get to start very soon, we’re going to be asking the court to order Warner to return all the money that’s been collected from everyone who has had to pay a licensing fee or royalty to use the song… at least going back to 1988,” he added.
“We are looking at the court’s lengthy opinion and considering our options,” said Warner/Chappell.
Despite the ruling, the song still remains under copyright in the UK and other countries – and caution should be exercised over its use, says intellectual property lawyer Mark Owen.
“As elements of the song are still potentially within the maximum copyright term, it may be the case that someone still owns some rights to it,” said Owen, a partner at law firm Taylor Wessing.
It still remains under copyright in other countries, caution should be exercised over its use.
“There are also complex questions as to what the impact of this ruling may be on uses outside the US, so people should not now rush into using the song without considering the impact of this judgment carefully,” he added
