When Jennifer Nelson in the United States created a documentary on the Happy Birthday to You song, she didn’t think that it was necessary to pay any licensing fees, as she didn’t think that copyright in the song was owned by anyone. After all, the song has been around for over 100 years! Well, Warner/Chappell Music Inc (Warner/Chappell) disagrees. It has collected licensing fees in the United States for years for the copyright which they claim they hold in the song. Here lies the kernel of an intriguing dispute.

The legal question underpinning the class action brought by the outraged film company for which Ms Nelson works is whether Warner/Chappell has over-reached its copyright entitlement in Happy Birthday to You. According to Good Morning To You Productions Corp (GMTY), any copyright owned by Warner/Chappell is confined to a piano arrangement, and no more. GMTY contends that any other copyright interest has long since expired.

The policy question underpinning the class action is whether such an old musical work, long since appropriated as part of the public consciousness in countries around the world, can be ‘owned’ by anyone. GMTY sued after Ms Nelson, received a notice to pay $1,500 to Warner/Chappell so the song could be included in her film or risk being fined $150,000 for breach of copyright. Presumably, and given the relatively low cost of the licence fee, this prompted the law suit primarily on a question of principle.

Australians will recall similar policy questions arising out of Men at Work’s infringing use of a folk song – Kookaburra Sits in an Old Gum Tree – as the introduction to its famous Down Under hit: – read more about that here.

On 13 June 2013, GMTY filed a class action suit in the United States District Court in the Southern District of New York asserting that Warner/Chappell is not entitled to claim any copyright ownership in Happy Birthday to You. In the alternative, GMTY states that if copyright is found to subsist, those rights are limited to the “extremely narrow right to reproduce and distribute specific piano arrangements published in 1935”.

Accordingly, GMTY seeks a declaration that the song is dedicated to public use and is in the public domain as well as monetary damages and restitution of the licensing fees collected by Warner/Chappell.

The disgorgement of alleged improperly obtained licence fees is said to be in the realm of many millions of dollars.

How can Warner/Chappell claim copyright in this song?

In the United States (like many other jurisdictions), copyright can subsist in the melody, lyrics and arrangements of a piece of music, all independently of each other. Further, copyright subsists for a lengthy term – 70 years after the author’s death, and where the work is co-authored, 70 years from the death of the last author.

The issues before the United States Court include whether the copyright in all the components of the music has expired and further whether Warner/Chappell holds exclusive rights in the melody and lyrics of the song, or simply in specific piano arrangements.

In their complaint, which we encourage everyone to read due to its emotive characteristics (not like our dry Australian pleadings!) and careful recitation of the history of the song, GMTY outlines why it suggests copyright in the work expired or was forfeited many years ago. GMTY traces the history back to sometime prior to 1893 to Mildred and Patty Hill, who co-authored a song called Good Morning to All. Although this song has different lyrics, it has undeniably the same structure:

Good morning to you

Good morning to you

Good morning dear children

Good morning to all.

Warner/Chappell alleges that the copyright was registered in 1935 and based on this the United States copyright will not expire until 2030 and public performances of the song require royalties to be paid.

Australia has a similar regime under the Copyright Act 1968 (Cth) in that copyright will subsist until the end of 70 years after the end of the year in which the author of the work died. Copyright subsists in musical works, although there is no definition of what a musical work is.

So while it is possible that Warner/Chappell owns (or once owned) copyright in the song, it needs to be confirmed whether the copyright has expired, or whether it is the right type of ownership for the exclusive rights that Warner/Chappell is asserting.

A number of us with a vested interest at IP Whiteboard are recalculating birthday party costs depending on the outcome of the Happy Birthday to You case:

Child’s birthday present: $100.00

Birthday cake: $30.00

Hire of gazebo in local park: $50.00

Hire of clown for party: $80

Child smiling as friends sing Happy Birthday To You: priceless….or not?

[Ed: ** Some of these costs are looking a little on the low side, unless we’re out of touch!]

We await word on whether Happy Birthday to You is in the public domain or not – and whether we need to start factoring the cost of royalties into our birthday parties!