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Happy Birthday to All

      “Happy Birthday to You” (“Happy Birthday”), the catchy tune notoriously sung at birthday parties around the world, received a legal victory on September 22nd. Judge George H. King, of the U.S. District Court for the Central District of California, conclusively ruled that the lyrics so synonymous with cake and candles, belongs to the people.

      The action arose in 2013 when Rupa Marya, singer of the band Rupa & The April Fishes, tried to include in her new album a live soundbite of an audience singing to her “Happy Birthday”. Warner/Chappell Music, Inc. (“Warner/Chappell”) then asserted that it owned all of the rights in and to that song and demanded that Marya pay Warner/Chappell a licensing fee for its use. Rather than complying, Marya filed a Declaratory Judgment action, contending that Warner/Chappell did not own a copyright in the “Happy Birthday” lyrics and that they should be compelled to return the “millions of dollars of unlawful licensing fees” they have wrongly collected over the years.

      The origins of the song “Happy Birthday” are a bit murky, but it appears the song originated with two Kentucky sisters, Mildred and Patty Hill. The sisters composed a song titled “Good Morning to All” in the late 19th century that featured an identical melody to be sung with lyrics similar to the now near universally known “Happy Birthday.” In 1893, the Hill sisters assigned their rights to the manuscript containing “Good Morning to All,” along with several other songs, to the Clayton F. Summy Company (“Summy Co.”). That same year, Summy Co. published the manuscript and filed for copyright registration of a songbook entitled “Song Stories for the Kindergarten.” Under the Copyright Act of 1909, works were only able to receive copyright protection for two consecutive 28-year terms. Subsequently, in 1921 a third Hill sister, Jessica, filed for renewal of the copyright to “Song Stories,” which then expired in 1949. At the time the song was written, “Good Morning to All” did not contain lyrics referring to birthdays. However, over the years, lyrics referring to birthdays began to appear, first being referenced, but not appearing, in a 1901 article from the Inland Educator and Indiana School Journal. The lyrics to what we now know as “Happy Birthday,” were first apparently published in 1911, but the author of the lyrics was not credited. Throughout the early to mid-1900’s, “Happy Birthday” appeared in a multitude of places, being published in songbooks and appearing in movies, but without any claim to authorship. Then, in 1933, “Happy Birthday” was performed in a play entitled As Thousands Cheer, which gave rise to a lawsuit from Jessica Hill for copyright infringement.

      Both parties mutually agreed that the musical component of the song was part of the public domain, and had been for some time. Therefore, the ultimate question to be decided by Judge King was the status of the lyrics. Judge King looked at a variety of issues, including a presumption of validity in the contested registration from the Copyright Office, the true author of the lyrics, whether or not the lyrics were abandoned or lost some time after being written, and if there was a valid transfer of rights from the Hill sisters to Summy Co.

      The court looked at three agreements between the Hill sisters, the Hill Foundation, an organization ostensibly created by the Hill sisters which was then assigned the rights to the lyrics before transferring them to Summy Co., and Summy Co. From looking at these three agreements, Judge King held that none of the contracts actually assigned the rights to the lyrics from the Hill sisters to Summy Co., as the First Agreement was limited to sheet music, the Second Agreement contemplated piano arrangements, and the Third Agreement did not explicitly assign the lyrics to “Happy Birthday,” or transfer any of the Hill sisters’ common law rights in said lyrics to Summy Co.

    Judge King thus held that because Summy Co. never acquired the rights to the “Happy Birthday” lyrics, Warner/Chappell, as Summy Co.’s purported successors-in-interest, did not own a valid copyright in those lyrics. As such, pending a successful appeal, this is a decision worth celebrating!

PHOTO: ©Ruth Black Used with permission of Fotolia

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