"Happy Birthday" lyrics – the copyright party is over

23 September 2015

Nick Aries

A Judge in the US yesterday declared that Warner-Chappell Music does not own a valid copyright in the lyrics to "Happy Birthday". The decision came in a class action case brought by a group of plaintiffs, which (like many others before) had been compelled to pay a royalty of $1,500 to use the lyrics.

The parties agreed that Warner-Chappell did not own copyright in the music to Happy Birthday, which was borrowed from another song "Good morning to you" and entered the public domain some time ago. So the dispute was just about the lyrics.

The problem Warner-Chappell had is they could not show the ownership of the copyright in the lyrics had been validly transferred to them. Warner-Chappell had argued the lyrics were written by two 'Hill' sisters around the turn of the last century, then transferred to Summy Co. who published and registered them for copyright in 1935. Warner-Chappell then bought the copyright registration from Summy Co. 

The Judge could not be sure on the current evidence who wrote the lyrics, and the plaintiffs did not manage to show that the Hill sisters had divested or abandoned any rights they had in the lyrics. But crucially, Warner-Chappell failed to show that any rights which the Hills did own in the lyrics were actually transferred to Summy Co. As a result, Summy's US copyright registration - now owned by Warner-Chappell - only protects a particular piano arrangement of the song and not the lyrics.

Unlike in the US, in the UK there is no system of copyright registration. However, the same issues about proving a valid chain of ownership in (unregistered) copyright are equally relevant in cases here, especially for old songs.

Yesterday's judgment will be heralded by film and theatre producers who would previously have had to pay to include the "Happy Birthday" lyrics in their work. However, they might put the champagne on ice in case there is an appeal.

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