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Legal debates continue on the copyright status of ‘Happy Birthday’
By Chris Cooke | Published on Thursday 21 May 2015
“Did Patty abandon her birthday?” That’s the question we need to answer. Or, to be more specific, did Patty abandon the copyright in her birthday song. Yes, the ‘Happy Birthday’ copyright case continues to go through the motions, with the judge overseeing the proceedings, George King, asking both sides to present their respective arguments over whether or not Patty Smith (nee Hill) ever abandoned her copyright in the song’s lyrics.
As previously reported, a film company which made a documentary about the famous song – and which had to pay Warner/Chappell for the rights to use it in its movie – has since filed litigation in the US arguing that, actually, the work is no longer protected by copyright in America, even though the Warner music publisher continues to control its use.
Whereas in Europe, the copyright in ‘Happy Birthday’ will expire in 2016, 70 years after the death of Smith, who wrote the song with her sister Mildred Hill, in the US the term of the copyright is more complicated, because of American copyright rules in the early 20th century, and the fact that those rules changed in 1923.
Warner/Chappell’s claim to the copyright in ‘Happy Birthday’ relates to copyright registrations that occurred in 1924 (for the lyrics) and 1935 (for the music). But film company Good Morning To You Productions Corp reckons that any copyright in the song predates the 1923 rule change, which would mean different regulations applied and the song would, therefore, be out of copyright.
Having considered motions from both sides back in March, in a statement this week King honed in on the lyrics, and a claim by Good Morning To You Productions that [a] the origin of the words to the song isn’t conclusively know and [b] anyway they had been widely performed and published prior to the formal copyright registration, which means the lyrics were already public domain before any registration took place.
Not so, says Warner/Chappell, which argues that there is no evidence the Hill sisters copied the lyrics from anyone else, and the fact that the song was widely performed prior to copyright registration does not mean the song lost its right to copyright protection.
According to The Hollywood Reporter, the publisher’s court submission read: “The fact that parties other than the Hill sisters disseminated the lyrics to ‘Happy Birthday To You’ prior to the 1935 registration does not displace the copyright that Warner/Chappell now owns”.
It went on: “So long as the Hill sisters had not copied the lyrics from someone else the work remains original to them, and thus fully eligible for copyright protection So long as the Hill sisters did not publish or authorise others to publish their works prior to registration, their ‘Happy Birthday To You’ remained protected by common law copyright until the time of that registration”.
King now wants both sides to present their respective arguments as to whether or not there was any ‘abandonment’ of the copyright in the ‘Happy Birthday’ lyrics prior to copyright registration. In theory that means King hasn’t reached a conclusion on this point, though the judge stressed that abandonment would need to be explicit rather than implicit, and there would need to be “some overt act” that resulted in Hill abandoning her copyright.
Which sort of suggests he is erring to the Warner/Chappell argument on this point. Though there are still other points the judge could use to deem the ‘Happy Birthday’ copyright null and void Stateside. The case continues.
