Warner/Chappell, an affiliate of Warner Music Group, has required producers and other individuals to pay royalty fees for any “public performance” of the song “Happy Birthday” for almost three decades. It has been reported that since purchasing the “Happy Birthday” rights from Birchtree Ltd. in the late 1980s, Warner/Chappell has collected about $2 million per year in royalties. While most users have (begrudgingly) coughed up the dough over the years, filmmaker Jennifer Nelson decided to challenge the $1,500 royalty fee she paid for using “Happy Birthday” in her documentary about the song, arguing that the song is in the public domain. Several artists/producers joined the suit as a class action. That suit, Good Morning To You Productions Corp. v. Warner/Chappell Music, Inc., was recently before Judge George H. King in the District Court of the Central District of California. On September 22, 2015, Judge King determined that Warner/Chappell did not own the rights to the lyrics of “Happy Birthday” and therefore was not entitled to royalties.
The melody to “Happy Birthday” is attributed to Mildred and Patty Hill, who published the original tune of the song as another song called “Good Morning to All” in 1893. The current “Happy Birthday” lyrics began accompanying this melody in the early 1920s. In 1934, Mildred and Patty Hill’s sister, Jessica Hill, filed the first lawsuit over the unauthorized use of the song in Irving Berlin’s musical “As Thousands Cheer.” Shortly after winning the lawsuit, Jessica sold the rights to the song to the Clayton F. Summy Company. These rights changed hands over the years until Warner/Chappell bought the rights for approximately $25 million in 1988. Judge King determined that there was no evidence that the Summy Company had ever obtained the rights to the lyrics. As a result, Warner/Chappell could not have obtained any rights to the lyrics from the Summy Company.
In reaching his decision, Judge King found that there was some question as to who wrote the lyrics to “Happy Birthday” and when those lyrics were written. The answers to those questions, however, would not have changed the court’s ruling that Warner/Chappell could not have acquired any rights in the lyrics from the Summy Company (although the decision does leave room for the possibility that some third party could claim rights in those lyrics–if they can come forward with convincing documentary proof supporting their claim of rights).
Because Judge King determined that Warner/Chappell does not have a valid copyright, Warner/Chappell may have to repay licensing fees dating back to at least 2009, as demanded in the lawsuit. After almost two years of litigation, District Judge George H. King has “blown out” the proverbial candles on this matter.
For further information, please contact Michael Nesheiwat.