The Smoking Gun in the Happy Birthday War?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 5, 2015

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The makers of a documentary about the song “Happy Birthday to You” claim they’ve discovered key evidence that could prove that the song is no longer protected by copyright.

Cash Cow

Birthday CakeWarner/Chappell, a subsidiary of Warner Music Group, earns about $2 million per year in licensing revenues from the song.

Filmmaker Jennifer Nelson was told by Warner/Chappell that she’d have to pay $1,500 to use the song in her documentary about it.

Others have been charged even more. For example, the New York Times reported that the maker of the 1994 Documentary “Hoop Dreams” was charged $5,000 to use it, and some have paid six figures.

Rather than pay up, Nelson filed a lawsuit. Her complaint states:

This is an action to declare invalid the copyright that defendant Warner/Chappell claims to own to the world’s most popular song, Happy Birthday to You, to declare that Happy Birthday to You is dedicated to public use and is in the public domain, and to return millions of dollars of unlawful licensing fees collected by defendant Warner/Chappell pursuant to its wrongful assertion of copyright ownership of the song.

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The Hill Sisters

Her complaint also notes that the tune for “Happy Birthday” was created in the late 1800s by two schoolteachers – the Hill sisters — and first published in 1893. The original lyrics didn’t relate to birthdays.

Copyright claims for the song first arose in 1935, by which time the old tune was associated with the birthday lyrics. The company that claimed ownership of the song at the time, via the Hill sisters, filed a copyright registration based on a particular piano arrangement of the song.

Warner’s copyright claim derives from that 1935 registration.

Legal Thriller

As the Hollywood Reporter notes, the case has aspects of a legal thriller:

On the eve of a judge’s ruling, attorneys find key evidence tucked away in the files of the opposing side. They rush to court with word of their bombshell discovery. If this sounds like the third act of a Hollywood movie, it very well might become one.

The “proverbial smoking gun,” as the filmmakers put it, is an 88-year-old book of children’s songs from the Warner/Chappell digital library.

The attorneys for the filmmakers say that they gained access to the digital files only three weeks ago, after they were told that documents were held back “mistakenly.”

They found a blurry 15th edition of The Everyday Song Book, published in 1927 – and it contained the “Happy Birthday” lyrics.

Tipped off by this clue, they looked for clearer and earlier editions of the book, and found the fourth edition (1922) in the University of Pittsburgh archives – without any copyright notice.

According to the plaintiffs’ lawyers, this means that the lyrics were in the public domain years before the 1935 copyright registration.

Warner/Chappell countered that there’s no indication that the Hill family was aware of the song’s publication in the book or that they authorized it.

The judge’s ruling in the case is expected shortly.

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