'Happy Birthday To You’ is one of the most popular songs in history and it is regarded by the Guinness Book of Records as the most recognisable song in the English language.
Over nearly three decades, Warner/Chappell has collected royalties for use of its lyrics (primarily in films and television programmes) that are estimated to amount to $2 million per year, but a federal judge in Los Angeles ruled on 22 September 2015 that it does not, in fact, have a valid claim to ownership of the copyright in those lyrics.
A class action was commenced in 2013 by Good Morning to You Productions Corp on behalf of all persons and businesses that had entered into a licence with Warner/Chappell or had paid Warner/Chappell a licence fee for the song ‘Happy Birthday To You’.
Neither Warner/Chappell nor the plaintiffs in the class action have ever contested that the gentle melody of the song, originally sung to different lyrics and entitled ‘Good Morning To You’, was composed by the Hill sisters of Kentucky at some time before 1893. However, although the lyrics of ‘Happy Birthday To You’ are very similar to the lyrics of ‘Good Morning To You’, they were written after the melody was composed and their origin remains unclear.
The court heard that the Hill sisters had assigned the copyright in the manuscript of ‘Good Morning To You’ to a music publishing company named Summy Co (a company whose successor was later acquired by Warner/Chappell). Warner/Chappell accepted that US copyright in the song’s music had expired in 1949, but claimed to own US copyright in the lyrics as a result of copyright registrations filed in the US in 1935. However, the court found that those registrations only covered “various piano arrangements for the song”. They did not cover the lyrics.
The court said it was not clear that the Hill sisters, or either of them, had actually composed the song’s lyrics, nor whether the lyrics were still entitled to copyright protection in the US. But even if both those things were true, Warner/Chappell was unable to prove that it had ever acquired that copyright, and so the court concluded that Warner/Chappell did not have, and had never had, any rights to the lyrics. As a result, Warner/Chappell Music does not hold a valid claim to the ownership of the US copyright in the lyrics or music of ‘Happy Birthday To You’.
The plaintiffs have now asked the court to order that Warner/Chappell should return “the millions of dollars of unlawful licencing fees they have collected by wrongfully asserting copyright ownership in the Happy Birthday lyrics.”
But it’s not quite time for celebration. Warner/Chappell is considering appealing the decision, and within the US some elements of ‘Happy Birthday To You’ may still fall within the scope of protection of the 1935 copyright registrations. The position is not much clearer in Europe or other countries where copyright does not depend on registration. If Patty Hill wrote the lyrics and, as appears likely, the sisters were joint composers of the music, then both the lyrics and music appear to remain in copyright until 31 December 2016.
While caution should still be exercised, it looks like the party might finally be over for Warner/Chappell.