Have you ever noticed how people rarely sing “Happy Birthday to You” in movies and television?  Instead, people usually sing “For He’s a Jolly Good Fellow,” even though no one actually sings that song in real life.  Nevertheless, this falsification of reality happens all the time.  My favorite example was when the crew of the Enterprise sang “For He’s a Jolly Good Fellow” to Worf on his birthday (in Klingon, naturally).  At the end of the song, Worf observed, “that is not a Klingon song.”  Worf’s observation is ironic, of course, because even humans don’t really sing “For He’s a Jolly Good Fellow” to each other on their birthdays.  (Well, maybe the humans who speak Klingon do….)

The reason for this falsification of reality is two-fold.  First, “For He’s a Jolly Good Fellow” is clearly in the public domain (which means you can use it for free).  Second, Warner/Chappell Music claims to own the copyright to the song “Happy Birthday to You” and charges $1,500 for a “synch license” whenever someone wants to use it on screen.

And until now, no one has ever formally challenged Warner/Chappell’s copyright to the Happy Birthday song.

Clearance Culture

Helping to falsify reality in films and television to avoid the risk of litigation is actually a full time job for some people in Hollywood.  Sadly, we live in a clearance culture, where every scene must be analyzed from top to bottom for potential trademarked or copyrighted works that could give rise to infringement claims.  If third-party intellectual property appears in a film or television show, there is often a license involved.  While at first blush this practice of obtaining a license for anything and everything may seem as crazy as kittens fighting each other with lightsabers, creators actually have a very good reason to be cautious.

Examples of film and television producers being sued for using other peoples’ creations are not difficult to find.  Some notable examples include:  Emerson Electric suing NBC after Claire from Heroes stuck her hand in an “InSinkErator” brand garbage disposal; Coca Cola Company threatening legal action against an Italian film distributor over a film in which Jesus drinks a can of coke in the desert; Louis Vuitton suing Warner Brothers over the unauthorized use of their luggage being used by a character who pronounced it “Luis” Vuitton in The Hangover Part II;  and Mattel suing MCA Records over the song “Barbie Girl.”  In one particularly famous case, an artist named Faith Ringgold, who created a distinctive silk screen on a quilt, successfully sued BET and HBO over a film that showed her art in the background for less than 30 seconds of total air time.

In the case of the recent Happy Birthday lawsuit, however, the issue is not about whether the work can or cannot be used without permission.  Instead, the issue is whether the song is even entitled to copyright protection at all.

The Happy Birthday Lawsuit

Earlier this month, a documentary film company called “Good Morning to You Productions Corp.” filed a lawsuit in New York federal court seeking, among other things, a declaration that the song “Happy Birthday to You” is in the public domain.  The documentary film company is making a documentary about the Happy Birthday song which apparently started out as a song called “Good Morning to You” back in 1893.  The company claims that it has “irrefutable documentary evidence, some dating back to 1893, [which] shows that the copyright to ‘Happy Birthday,’ if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to ‘Happy Birthday,’ those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935.”

According to the documentary filmmakers, people started using the song “Good Morning to You” with the words “Happy Birthday to You” as early as 1901.  The filmmakers also claim that the lyrics to Happy Birthday to You were first published in 1911 by the Board of Sunday Schools of the Methodist Episcopal Church and that a copyright application was filed the following year.  These facts, if true, prove two things.  First, you can apparently make a documentary film about any subject these days regardless of how esoteric the topic might be.  And second, the Happy Birthday song may actually have fallen into the public domain.

The legal arguments involved in this case will involve the vagaries of pre-1976 Copyright Act law that, for most non-IP lawyers, would give Ambien a run for its money.  Of greater general interest, though, is the broader hypothetical question about whether singing Happy Birthday in a film or television show ordinarily can be done without permission.  In other words, is this lawsuit even necessary?

Happy Birthday Without Permission

Analyzing copyright issues can be complicated because there are always numerous points to consider.  For example, you might wonder why Happy Birthday is entitled to protection at all if people use it in a functional way (i.e., to wish someone a happy birthday).  The sculptural design of a “Ribbon®” bike rack, for example, is not copyrightable because it is a “useful article.”  There is a related concept in trademark law that applies to trademarks that have become so common that they now just refer to a generic product type.  Words like “Aspirin,” “Zipper,” “Heroin,” “Escalator,” “Yo-yo,” and “Thermos,” for example, all used to be entitled to trademark protection but have now become “genericized” and can be used by anyone.

However, the “useful article” doctrine in copyright law does not apply to music.  This means you cannot simply contend that using the Happy Birthday song is permissible without a license just because the song serves a useful function.

What’s left is a “fair use” defense.  As we have blogged about before, fair use is extremely context specific and must be analyzed on a case-by-case basis.  In any particular case, you would have to examine numerous factors, including how the song was used, i.e., whether the use was “transformative,” and how much of the song was used.  For example, a four or five second clip that shows a family member delivering a cake to another family member while singing Happy Birthday could be viewed quite differently than say a 30 second clip of a choir singing the entire song outside the context of celebrating someone’s birthday.  (Although query why anyone would ever sing Happy Birthday outside the context of celebrating someone’s birthday….)

Ultimately, while one may conclude that singing Happy Birthday in a film or television show might constitute a fair use under particular circumstances, there would always be the threat of a lawsuit from the rights holder.

On the other hand, after this new lawsuit is over, there may not be a rights holder to worry about.