Last week a United States District Court judge declared that the copyright claimed in the lyrics to the song Happy Birthday To You is invalid.

The origins of the song date back to 1893 when two sisters, Mildred and Patty Hill, wrote a song called Good Morning to All which bears the same melody as Happy Birthday to You. That same year, the Hill sisters assigned their rights to a manuscript containing Good Morning to a Clayton F. Summy.  In 1935, the Clayton F. Summy Company (Summy Company) registered copyright to two works entitled Happy Birthday to You, one of which purportedly secured copyright in the Happy Birthday lyrics.  (The US has a system for registering copyright, which has no counterpart in Australia.)

Warner Chappel Music has claimed the copyright for the use of the song since 1988, when it purchased the successor to Summy Company.  After being told that they would have to pay a fee and enter into licensing agreements with Warner Chappel Music to use the song, several artists, including filmmaker Jennifer Nelson, filed the case against Warner Chappel Music and Summy-Birchard Inc, challenging the copyright and seeking the return of the licensing fees that have been collected.

The parties did not dispute that the Happy Birthday melody had been borrowed from Good Morning and was in the public domain.  What the parties disagreed about was the status of the Happy Birthday lyrics, the origins of which are far less clear.

The defendants argued that the Hill sisters wrote the lyrics around the time that they wrote the melody, and that they transferred their common law rights to the Summy Company, which then registered them for copyright in 1935.  The plaintiffs, on the other hand, argued that it was possible that the lyrics were written by someone else, and that even if they were written by the Hill sisters, their common law rights were either lost due to general publication or abandonment or were never transferred to the Summy Company.

Addressing the claims about authorship and abandonment, the judge found that the evidence was inconclusive as to whether the Hill sisters wrote the Happy Birthday lyrics.  Even if they were the authors, the judge noted that they never tried to obtain US federal copyright protection or prevent others from using the lyrics.

On the issue of transfer, the judge examined several agreements between the Hill sisters and the Summy Company which showed that while they had transferred to the Summy Company their rights to the melody, and to piano arrangements based on the melody, they never transferred the rights to the lyrics (assuming they held those rights) and this was ultimately fatal to the defendant's claim that they now owned the copyright in the lyrics.

The question of the return of licensing fees that have been collected by the defendants was not addressed in the judgment, and will be presumably be for another day.