The Happy Birthday Lawsuit

A class-action lawsuit has been filed against Warner/Chappell Music, challenging their copyright claim to the song "Happy Birthday to You." It's about time!

The tune has been around since at least 1893. The words were added in 1912, or possibly even earlier. It was first registered for copyright protection in 1935 and the rights were purchased by Warner/Chappell in 1990. The company that is suing to bring the song into the long-overdue public domain, Good Morning to You Productions Corp., argues that there is no validity in the current ownership of the song and that the copyright should be cancelled, or at least narrowed significantly to a few extremely limited scenarios. (The name of the company is a clever play on the original lyrics to the tune, "Good Morning to All.")

The Guinness Book of World Records claims that "Happy Birthday to You" is "the most recognized song in the English language." Although probably everyone sings the tune a bunch of times a year, most of us don't have to worry about infringing on anyone's copyright, because those celebratory sing-alongs are considered fair-use. When the song is used in a commercial venture, however, such as a movie, a television program, a theatrical stage show, or any other for-profit recording, or any manner that might hurt the commercial value of the copyrighted property, a royalty fee must be paid or the user must oblige any cease-and-desist request from the owner. 

The production company that is bringing the case to trial is developing a documentary film about the song and had to pay $1,500 for the right to use the tune on screen or face a $150,000 fine. They are now seeking a ruling to invalidate the copyright and to refund the millions of dollars collected by Warner/Chappell over the decades.

If Warner/Chappell owns the copyright, of course they are entitled to compensation when someone else makes profit from it, but it is interesting that the documentary-makers' lawsuit is questioning whether they legitimately have any legal claim to the song at all, and I'm amazed that this is apparently the first time someone has challenged them in court. A lawyer friend of mine thinks Warner/Chappell's ownership is "bogus" and compares their copyright of the song to "patent trolling," which is the purchase of a patent solely for purposes of bringing infringement suits against those who purportedly use it. In other words, they are not using the song in new, creative ways themselves, they are just actively penalizing others who use it through exorbitant licensing fees.

"Happy Birthday to You" has long been the poster-child of over-zealous copyright ownership, nickle and diming the public and small businesses who use the song, stifling their freedom of expression. This is a case that I'll be following very closely.

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