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Sept. 23 — A Warner entity that has for decades been demanding royalties for use of “Happy Birthday to You” in movies and other situations does not own the copyright interest in the lyrics, the U.S. District Court for the Central District of California ruled Sept. 22.
In a legal proceeding initiated by the singer in a “global alternative” band, the court found that a series of agreements in the 1890s, 1930s and 1940s resulted only in Warner/Chappell Music Inc.'s predecessor company acquiring rights in two piano arrangements of “Happy Birthday,” not in the lyrics.
The singer and other plaintiffs who brought the declaratory judgment action in this case are seeking to have it certified as a class action, and one of their lawyers told Bloomberg BNA that they intend now to try to get Warner/Chappell to refund the royalties it has collected over the years, which some public estimates state amount to about $2 million annually.
The court's ruling did not find that the “Happy Birthday” lyrics were in the public domain—only that Warner/Chappell did not hold any copyright interest in them—to the extent that there still might be any remaining rights.
According to the court, the parties in the case agree that the “Happy Birthday” tune or melody, which was first composed in the 1890s by the Hill sisters for a song called “Good Morning to You,” was already in the public domain.
Rupa Marya performs as a singer with the San Francisco-based alternative band Rupa and the April Fishes.
Last year, Marya—who often just goes by “Rupa” when performing—filed a federal complaint, stating that she had paid $455 to Warner/Chappell for a license to make and sell 5,000 copies of an album that included a recording of her live performance of “Happy Birthday to You.”
Marya made several arguments that Warner/Chappell did not hold legitimate rights in the song, including that the lyrics were in the public domain.
She sought class certification on behalf of all people who have paid licensing fees in order to perform and record the song, but the district court put that and other questions aside to focus on the question of whether the rights in the lyrics had really been acquired through agreements between the Hill sisters and Warner's predecessor entity, the Summy Co.
Robert Brauneis, a law professor at the George Washington University, told Bloomberg BNA that the district court's ruling does leave open the question of whether someone else might have a copyright interest in the “Happy Birthday” lyrics, if the agreements relied on by Warner/Chappell did not effectuate a transfer of rights.
Indeed, if this issue were to go to trial, Brauneis said that he would predict that it would be found that even in the 1930s, “Nobody then thought that those lyrics were under copyright and in fact they weren't. That would place the song in the public domain, but that's not what this decision says.”
Regardless, the court's ruling means that “the case is over for Warner/Chappell and it would have to be somebody else to defend copyright in this song, and I don't even know who that somebody else would be,” Brauneis said.
Mark C. Rifkin of Wolf Haldenstein Adler Freeman & Herz LLP, New York, counsel to Good Morning to You Productions Corp. and lead counsel for the plaintiffs, said that even though the court did not in this decision rule that the “Happy Birthday” lyrics were in the public domain, the plaintiffs had offered “pretty overwhelming evidence on the question.”
“Nobody other than Warner and their predecessor Summy has claimed to own the copyright to the song ‘Happy Birthday to You,' ” he told Bloomberg BNA. “Patty Hill never claimed to own a copyright to ‘Happy Birthday to You.' Mildred Hill never claimed to own a copyright to ‘Happy Birthday to You.' Jessica Hill never claimed to own a copyright to ‘Happy Birthday to You.' ”
In the 1890s, Patty and Mildred Hill were the composers of “Good Morning to You,” whose melody is the same as that of “Happy Birthday.” Their sister, Jessica, was their heir and was involved with administering the rights in their works after their deaths.
“As far as we are concerned, the evidence is conclusive that no one has a copyright to the song, but I understand Judge [George H.] King's decision. He says we'll deal with that later,” Rifkin said.
But with respect to Warner/Chappell, “it doesn't matter if someone else owns the copyright,” he said. “Warner never owned the copyright. Summy never owned the copyright.”
However, Brauneis pointed out what he thought was an interesting aspect of the court's decision.
Warner/Chappell had argued that because it held a certificate of registration from the Copyright Office, that it should benefit from a presumption that it did indeed hold legitimate rights in “Happy Birthday.”
However, the court found that there was an error in the registration certificate, and this meant that the court would not give Warner/Chappell the benefit of a presumption.
The specific error was that the registration was in the name of an employee of the Summy, when it was plain that Warner was asserting that the lyrics were written many years before that by someone else, possibly one of the Hill sisters.
Jay Rosenthal of Mitchell Silberberg & Knupp LLP, Washington, saw something even deeper in this ruling, although he admitted to Bloomberg BNA that his was a minority view.
“There is a clear political undertone to the case,” Rosenthal said in an e-mail message. “The plaintiffs are interested not only in seeking a commercial advantage—which they are—but to argue that copyright lasts too long. The publishers, on the other hand, are doing nothing but standing up for their rights as the law provides to them.”
Rosenthal's firm has occasionally represented Warner/Chappell in the past, but he said that neither he nor his firm are involved in this case. Rosenthal has also been a board member of and general counsel to the National Music Publishers' Association, of which Warner/Chappell is a member.
He also said that the membership of the United States in the Berne Convention for the Protection of Literary and Artistic Works of 1886 and other international obligations mean that U.S. copyright law is supposed to eliminate or minimize procedural impediments to copyright protection” and not allow authors to “inadvertently or mistakenly lose their copyright protection, even on a technicality.”
And in this case, Rosenthal said, the court had allowed Warner/Chappell's copyright interest to be eliminated “by engaging in an undisciplined and incomplete analysis of old contracts, old cases, and old law” and that this “seems to be an abuse of their discretion or simply outright wrong.”
The court's ruling was issued by Judge George H. King.
Marya was represented by Wolf Haldenstein Adler Freeman & Herz LLP, San Diego. Warner/Chappell was represented by Munger Tolles & Olson LLP, Los Angeles.
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