A little over two years ago, I wrote about licensing as it pertained to the song “Happy Birthday.” Today, the song is back in the news as a judge determines that the song has passed into the public domain and Warner/Chappell can no longer demand to be paid by those wishing to use the song in movies, at restaurants, in musical birthday cards, or anywhere else.
The song nearly found it’s place in the public domain twice before: Once in 1991, and once again in 2010. However, changes in the Copyright Acts in the U.S. kept the song out of the public domain. Warner/Chappell and its legal department were of the opinion that Warner/Chappell owned the copyrights to “Happy Birthday” until 2030 when the song would enter the public domain upon the expiry of its copyright life.
That being said, the song didn’t make it into the public domain today because it’s finally aged out of the its copyright. No, a federal judge determined that the copyright that Warner/Chappell was laying claim to wasn’t the copyright protection that was extended to the original copyright owner, Clayton F. Summy Company, back in 1935.
The Clayton F. Summy Company had filed copyrights for specific piano arrangements of the song that were available to the public through the Clayton F. Summy Company. The song itself — which was a much older song titled, “Good Morning To You” by Patty Smith Hill and her sister Mildren J. Hill, to which new lyrics were added to become “Happy Birthday To You” — wasn’t copyrighted by the Clayton F. Summy Company!
If Warner/Chappell decide not to appeal the decision (or if they appeal and lose the appeal), this doesn’t mean the end of the matter. There’s a strong possibility that a class action lawsuit will be filed to recoup the millions of dollars in licensing fees that Warner/Chappell has collected since 1988 when Warner/Chappell first believed it acquired the rights to the song.
At present, it’s estimated that the song brings royalties to Warner/Chappell to the tune of $2 million dollars per year. When you multiple $2 million USD over twenty-seven years, the class action lawsuit could spell a minimum cost to Warner/Chappell of $54 million USD plus legal fees plus damages. Based on that alone, it’s very likely that Warner/Chappell will file an appeal on the most recent legal decision.
Business isn’t always as straightforward and clear-cut as one might think. This legal challenge over whether a song has been in the public domain for decades or has an enforceable copyright proves that point.
Until a final decision is made about whether Warner/Chappell intends to move forward with an appeal, it may be prudent to refrain from using the song in a public or commercial setting. And yes, you may have to put up with annoying rap-style birthday greeting performances by restaurant servers until we go al fine on this matter.