Film maker handed potential gift in ‘Happy Birthday’ copyright case
A film-making company working on a documentary about the song “Happy Birthday to You” has filed new evidence that “proves conclusively that there is no copyright” to the lyrics.
The evidence comes in the form of a book of children’s songs sourced from a digital library belonging to music publisher Warner/Chappell, which claims it owns the copyright to the song.
If the evidence is validated it could bring to a close a two-year lawsuit centring on the song and who, if anyone, owns the copyright attached to it.
In March this year WIPR reported that oral arguments had been heard in the case, in which documentary maker Good Morning to You Productions is battling it out with Warner/Chappell at the US District Court for the Central District of California.
In the lawsuit, filed in 2013, Good Morning to You claimed that Warner/Chappell had collected “millions of dollars” in licensing fees for the song even though its origins are disputed.
The lawsuit was filed after Good Morning to You paid Warner/Chappell $1,500 to play the song in a documentary that it had made earlier that year covering the history of the track.
According to the new filing, given to the court yesterday, July 27, earlier this month Warner/Chappell presented lawyers representing Good Morning to You with previously withheld material that was “mistakenly” not produced during the discovery period, which ended on July 11, 2014.
Included in the documents was the 15th edition of a book called “The Everyday Song Book”, published in 1927 and which contained the lyrics to “Happy Birthday to You”.
The lawyers for the film maker then tried to find earlier editions of the book and came across an edition published in 1922 in archives belonging to The University of Pittsburgh.
This edition also included the song but without any copyright notice. Instead it included a line underneath that said “special permission” had been granted to use the song’s lyrics from Clayton F Summy Co.
Clayton Summy is the former owner of another music company called The Summy Company and is believed to have first published the song, in 1893. Warner/Chappell bought Summy’s company in 1998 and has maintained ever since that it assumed the song's copyright dating to 1935.
Furthermore, the crucial line of text about Summy was “blurred almost beyond legibility” in the copy that Warner/Chappell handed over, Good Morning to You said. According to the court filing this is “the only line of the entire PDF that is blurred in that manner”.
The songbook, according to Good Morning to You, proves that the “Happy Birthday to You” lyrics were in the public domain many years before 1922.
The company said the lack of copyright notice shows that the 1935 copyright covered only the specific piano arrangements written by Summy's employees.
"Since the lyrics were already in the public domain long before 1935, there was nothing else to be copyrighted other than the new work that Summy’s employees contributed when those copyrights were registered."
A hearing of the evidence has been scheduled for tomorrow, July 29.
Tristan Sherliker, associate at law firm EIP, said it is a “dramatic discovery”:
“Under the law at the time, if there was no copyright notice, there is simply no copyright. And even if there had been a copyright notice, the rights would have expired in 1949. And even then, if the copyright had somehow been renewed in 1949, the maximum duration would have been until 1997, which is still way out of time for 2015.”
Randall Newman, owner of law firm Randall S Newman and representing the plaintiff, told entertainment news website The Hollywood Reporter that Warner/Chappell “should admit defeat but they won’t because too much money is at stake”.
Warner/Chappell had not responded to a request for comment at the time of publication but we will update the story should the company get in touch.
