How many times have you sung “Happy Birthday” in your life? Or heard it sung? Now, have you ever wondered whether you (or the hundreds of millions of other people who sing the song) are infringing someone’s copyright in the song? I’m hoping your answer (assuming you’re the average American) is “No!“ However, that question is at the center of a new lawsuit and proposed class action filed last week in the Southern District of New York.
Good Morning To You Productions Corp. (or GMTY as it charmingly abbreviates itself in its court filing) is making a documentary about the song “Happy Birthday.” GMTY has filed suit against Warner/Chappell Music Inc., one of the licensing entities of Warner Music Group, alleging that Warner/Chappell has stated that it owns the copyrights to “Happy Birthday To You” and has used these “copyrights” to either prevent others from using the song or requiring them to pay license fees for the use. GMTY itself paid a $1500 license fee to use the song. GMTY claims that “Happy Birthday to You” is and has been in the public domain for decades and that Warner/Chappell’s rights are limited to a few very specific arrangements of the song that were created in the 1930s.
In its Complaint, GMTY lays out the convoluted and tortured history of “Happy Birthday.” They have to because of the convoluted and tortured history of copyright law in the United States. Current copyright law is set out in the Copyright Act of 1976. The prior version of the law was the Copyright Act of 1909. Thanks to these two acts and the differences between them, different rules apply to copyrightable works depending on when they were created and published.
Under the 1976 Act, any copyrightable work created on or after January 1, 1978 is protected by copyright for the life of the author plus 70 years. Works made for hire, anonymous, and pseudonymous works are protected for 90 years from the date of first publication or 120 years from the date of creation, whichever is earlier. These works are protected by copyright from the moment of creation, irrespective of registration or copyright notice; although, the copyright owner can’t bring an action for infringement until the work is registered.
To secure copyright under the 1909 Act, in contrast, you had to publish your work with a copyright notice or by depositing a copy of an unpublished work with the Copyright Office. If there was no notice in published copies or if your work wasn’t published and you didn’t deposit a copy, then your work wasn’t protected by copyright and fell into the public domain. Once your work was protected by copyright, you were protected for 28 years from the date of first publication and could renew the copyright for an additional 28 years after that.
However, a work that was in its first copyright term under the 1909 Act (anything published after 1950) when the 1976 Act became effective was protected for the remainder of its term plus an additional 67 years. A work that was in its renewal term was protected for 95 years from the date copyright was originally secured.
You still with me?
GMTY has traced the history of “Happy Birthday” and alleges that Warner/Chappell doesn’t own the copyrights it says it does. According the GMTY, this is what really happened:
1. Sometime before 1893, the Hill Sisters authored sheet music (music and lyrics) including the song “Good Morning to All.” “Happy Birthday” is set to the melody of “Good Morning to All.”
2. In February 1893, the Hill Sisters transferred their rights to “Good Morning to All” to Clayton F. Summy. Summy received a copyright registration for “Good Morning to All,” music and lyrics, as part of his registration for the book Song Stories for Kindergarten. The lyrics to “Happy Birthday” were not included in the book. Song Stories for Kindergarten, including “Good Morning to All,” entered the public domain in 1921.
3. Summy published additional books, and received additional registrations, that included “Good Morning to You,” but not “Happy Birthday,” through the rest of the 1890s into the 1900s, including a registration in Song Stories for Sunday School in 1899. Song Stories for Sunday School entered the public domain in 1927.
4. Despite no publication of the lyrics, the public began singing “Happy Birthday” some time in the early 1900s.
5. The first time “Happy Birthday” lyrics were published was in 1911 in a book by the Board of Sunday Schools of the Methodist Episcopal Church. The Board received a copyright registration for the book, The Elementary Worker and His Work.
6. The first time the music and lyrics for “Happy Birthday” were published together was in 1924 in a songbook titled Harvest Hymns.Harvest Hymns was copyrighted in 1924 and its copyright was renewed by the Sunday School Board of the Southern Baptist Convention in 1952.
7. In 1934 and 1935, Summy received copyright registrations for various piano arrangements of “Happy Birthday.” These arrangements did not include the lyrics to “Happy Birthday” and did not claim copyright in the lyrics or in the combination of lyrics and the melody of “Good Morning to All.”
8. In 1938, Summy granted ASCAP the right to license “Happy Birthday.”
9. In 1962, Summy renewed its 1934 and 1935 copyrights, but each renewal was expressly confined to the musical arrangements.
10. Warner/Chappell acquired Summy’s company and copyrights in 1998.
So, according to GMTY, the only thing Warner/Chappell has is a copyright in the various piano arrangements of “Happy Birthday.” The original tune is in the public domain. The original lyrics are likely owned, if they are owned at all, by someone other than Warner/Chappell. Ultimately, GMTY not only wants a declaration that “Happy Birthday” is in the public domain, but also wants to certify a class of people or entities that have paid Warner/Chappell a license fee to use “Happy Birthday” since June 13, 2009. Since “Happy Birthday” is officially the most recognized song in the English language, that could potentially be a large class.
Will GMTY succeed? Who knows at this point; just getting through the Complaint took me a couple of hours to decipher and that’s just getting through the alleged facts! But this case isn’t going to be as simple as a four-line refrain.