Class action challenges owners of “Happy Birthday to You” - Fordham Intellectual Property, Media & Entertainment Law Journal
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Class action challenges owners of “Happy Birthday to You”

Class action challenges owners of “Happy Birthday to You”

Perhaps the most widely sung tune in our country’s history, “Happy Birthday to You” has been challenged in court for misappropriation of copyright protections, according to IP Watchdog.  Warner/Chappell Music, Inc. has owned the copyrights on the song since 1998 when it acquired Birch Tree Ltd. in 1998.  These copyrights have been quite profitable, generating $2 million every year for Warner/Chappell. The music company strongly invokes its copyright protections, requiring film companies and others to pay over a thousand dollars for use of the song.  Using the song without prior permission from the music company could lead to a legal battle that would impose a $150,000 penalty, enforceable via the Copyright Act of 1976. Consequently, many legal scholars have been in debate about the copyright protections that Warner/Chappell has been enforcing.  Robert Brauneis, a professor at George Washington University Law School, contends that Warner/Chappell’s copyrights are invalid because the music company has unreliable copyright notice, failed to properly renew applications, and does not have sufficient evidence of authorship.

As a result, in June 2013, a production company, Good Morning To You Productions Corp, initiated a class action suit against Warner/Chappell with hopes of invalidating the music company’s copyright ownership of the classic birthday song.  If the court decides against Warner/Chappell, it could be ordered to reimburse all licensing fees, potentially millions of dollars, it has accumulated over the past three years.

The production company was in the middle of filming a documentary, titled “Happy Birthday,” which was centered around the traditional song when Warner/Chappell ordered Jennifer Nelson, the film’s creator, to pay $1,500 and enter into a licensing agreement in order to use the song in the documentary.  Warner/Chappell argues that its copyright to “Happy Birthday to You” is enforceable based on registrations filed with the U.S. Copyright Office in 1935 that were renewed in 1962.  As per the Copyright Act of 1962, this means that Warner/Chappell’s ownership will expire in 2030, 95 years after the song was first registered with the U.S. Copyright Office.

Plaintiffs here have offered a collection of historical evidence to support their claims.  First, Good Morning To You Productions tendered a manuscript that was sold to publisher Clayton F. Summy in 1893.  The manuscript included a song with the original melody of “Happy Birthday to You.”  Then, in 1924, Robert H. Coleman published “Harvest Hymns,” a songbook that is believed to be the first time that the lyrics and melody of “Happy Birthday to You” were published together.  In the songbook, Coleman does not stake authorship to this song, even though authorship and copyright information were provided for other works in “Harvest Hymns.”

Meanwhile, the lawyers for Warner/Chappell have argued that 1976 and 1978 correspondence between Summy, who originally bought the melody of “Happy Birthday to You,” and ASCAP – the American Society of Composers, Authors and Publishers – is protected by attorney-client privilege and cannot be released.  The correspondence between the two is believed to contain information related to the history and status of the copyrights on the song.

Annamaria Anselmo

Annamaria Anselmo is a second-year student at Fordham Law School and a staff member of the Fordham Intellectual Property, Media, and Entertainment Law Journal. Her interest in IP stems from her background in journalism and love for fashion and books. In her spare time, she enjoys Broadway shows, pumpkin spice lattes, and Christmastime.