from the well, that's a pickle then dept
Boom. And we thought the ridiculous monkey selfie story would be the big copyright story of the week, and yet not even 24 hours later, Judge George King in the central district of California ruled that Warner Chappell “does not have a valid copyright” in the song Happy Birthday. This is a case we’ve been following for some time — actually since before the lawsuit was filed (in 2013) back to some research in 2008 showing that Happy Birthday was almost certainly in the public domain — and that music publishing giant Warner Chappell was likely fraudulently making somewhere around $2 million a year claiming royalties on the song.
A couple months ago, the plaintiffs dropped something of a bombshell in the case, with more evidence that the song was definitively in the public domain. Warner tried to tap dance around this, and believe it or not, the judge actually rejected the evidence as conclusive. But it still determined, through other means, that Warner/Chappell’s copyright claim is a load of bunk. One thing is important though: it did not declare the song to be in the public domain. It just said that Warner/Chappell does not have a valid copyright on it — which technically means that the song is an orphan work. Conceivably, if the Copyright Office gets its way that might mean you’d still need to tell the Copyright Office every time you intended to use the work (this is ridiculous, but we’ll discuss that below).
If you’ve followed the case for any amount of time, you’d know that it shows what a complete mess copyright law can be and this ruling is no exception in driving home that point. The court first notes the distinction between the melody (which was first created sometime around 1893) and the lyrics which likely came about a decade or so later, but the copyright on Happy Birthday wasn’t filed until 1935. This was (sort of) okay at the time, due to the mix of common law copyright and federal copyright laws (it wasn’t until the 1976 Act that the US — mostly — tossed out common law copyright).
The distinction between the music and the lyrics as copyrightable elements
is critical in this case because both Parties agree that the Happy Birthday melody was
borrowed from Good Morning and entered the public domain a long time ago. The Parties
disagree only about the status of the Happy Birthday lyrics. Defendants contend, in brief,
that the Hill sisters authored the lyrics to Happy Birthday around the turn of the last
century, held onto the common law rights for several decades, and then transferred them
to Summy Co., which published and registered them for a federal copyright in 1935.
Plaintiffs challenge nearly every aspect of this narrative. They argue that the lyrics may
have been written by someone else, the common law copyrights in the lyrics were lost due
to general publication or abandonment before the lyrics were published, and the rights
were never transferred to Summy Co
And then… the whole thing is just a mess, because no one’s quite sure what was actually registered or even who gave what rights to whom. There are a whole lot of open questions.
application for E51990 stated that it was an “Application for Copyright for Republished
Musical Composition with New Copyright Matter.” … In other words, E51990
was a derivative work….
The title of the musical composition was listed as “Happy Birthday to You.” …
The author of the new copyright material was “Preston Ware Orem, employed for hire by
Clayton F. Summy Co.” (Id.) In one blank space, the application prompted the claimant
to “[s]tate exactly on what new matter copyright is claimed . . . .” (Id.) For E51990, the
response read: “Arrangement as easy piano solo, with text.” (Id.)
Defendants contend that this registration entitles them to a presumption of validity.
We disagree. Even assuming that the lyrics were printed in the deposit copy for E51990,
it is unclear whether those lyrics were being registered, and therefore it is unclear whether
the Copyright Office determined the validity of Summy Co.’s alleged interest in the lyrics
in 1935. The “new matter” that the registration purported to cover was a piano
arrangement—a derivative version of another melody. Defendants argue that since the
arrangement was registered “with text,” that meant that the Happy Birthday lyrics were
part of the new matter being registered alongside the arrangement. But the registration
clearly listed “Preston Ware Orem” as the author of the new matter. To our knowledge,
no one has ever contended that Orem wrote the Happy Birthday lyrics. Defendants even
admit in their pleadings that Orem did not do so…. Therefore, the registration is flawed in
any event. If, as Defendants assert, the new matter being registered included the lyrics,
then, contrary to the registration certificate, Mr. Orem could not have been the author of
the new matter. Conversely, if Mr. Orem were the author of the new matter, then the
lyrics could not have been a part of the registration.
In short, the copyright registration itself was faulty, which turns out to be something of a problem, especially under the 1909 Copyright Act, where you had to be pretty careful in your registration or a work would automatically go into the public domain. But the court’s not done yet. Instead it takes a step back and asks who the hell wrote the damn song in the first place? The court notes that it’s inconclusive. Patty Hill (one of the two sisters who is credited with creating the melody) claimed to have done so, but only 40 years later, which strikes the court as odd. But there’s not enough evidence either way to make a final call. The court notes that determining who actually wrote the lyrics is one point that would need to go to trial, and it won’t give a summary judgment on that.
Then it looks at whether or not (assuming Patty Hill did write the lyrics) Hill gave up her rights by publishing the lyrics prior to that copyright registration in 1935. The key point here is the “bombshell” revealed earlier this summer of a 1922 publication of the lyrics, supposedly with the approval of Summy Co., which the plaintiffs claim is proof of an authorized publication without a copyright notice or registration, thus thrusting the work into the public domain. The court, though, says this is not enough.
It is undisputed that, in 1922, Summy Co. did not
have any rights to the Happy Birthday lyrics; Defendants claim that the rights to the lyrics
were given to Summy Co., at the earliest, in 1934 and 1935. It is also not clear if Summy
Co. gave the publisher of The Everyday Song Book permission to publish the Happy
Birthday lyrics specifically or just permission to publish Good Morning, of which Summy
Co. had been printing and selling copies on the Hill sisters’ behalf at that time. Since the
publication of The Everyday Song Book would not be sufficient to entitle Plaintiffs to a
directed verdict, Plaintiffs cannot satisfy their initial burden….
So, apparently the bombshell wasn’t considered such a bombshell by the court.
Next question: if Patty Hill wrote the song and did not publish it before getting the copyright, did she later abandon the copyright? Here, the court kind of throws its hands in the air, saying that it’s not at all clear what even constitutes abandonment under the 1909 Act. A similar debate over whether there was joint ownership of the copyright between Patty and her sister Mildred also is a dead end for the court.
Then we get to the question of whether or not Patty Hill and Jessica Hill (another of Patty and Mildred’s sisters) actually transferred any rights they may have held to Summy Co. There was a lawsuit between the Hills and Summy Co back in 1942 over whether or not Summy went beyond its rights in licensing the song, but the actual agreement between the two parties has been lost to history. However, what is in that lawsuit suggests that… the Hills only transferred the melodies to Summy and not the lyrics (remember above the important difference between the two?).
First, and most importantly, an inference that the Second Agreement had something
to do with the Happy Birthday lyrics is not supported by any explicit description of the
agreement in either the Amended Complaint or the Answer. Both the Hill Foundation and
Summy Co. described the agreement as transferring rights in “piano arrangements.”… Obviously, pianos do not sing. Thus, it is not logical to infer
that rights to “piano arrangements” would include rights to any lyrics or words as well.
This turns out to be the key in all of this. The court is saying that while the Hills may have transferred the music over to Summy — it did not transfer the lyrics. And, remember, that’s what this copyright case is about. Warner Chappell’s tap dancing does not impress the court. The court notes that the only way the 1940s lawsuit makes sense is if the Hills did not license the lyrics to Summy, but just the music.
… an inference that the Second Agreement covered the lyrics is unreasonable
because it would be inconsistent with the underlying legal theory behind the lawsuit. If the Second Agreement had covered the Happy Birthday lyrics, that would have meant that
in 1934 and 1935 Jessica explicitly granted Summy Co. the right to license the lyrics to
others for public performance…. If that
were the case, there would have been no reason for the Hill Foundation to accuse Summy
Co. of “secretly” entering into deals behind the Hill sisters’ backs with movie and play
producers, granting them permission to publically perform Happy Birthday. Moreover,
there would have been no reason for Summy Co. not to point out in its Answer that it had
acquired the public performance rights to the lyrics from Jessica under the Second
Agreement, since that fact would have given the company a strong defense to the
accusation that what they were doing was somehow a “secret” or was otherwise unlawful.
Then there’s the fact that, to settle the 1942 lawsuit the Hills and Summy entered into a new agreement. Warner again claims this proves that the copyright on the lyrics belonged to Summy, but the court says no way:
This argument fails as well. Unlike the First and Second
Agreement, we have a copy of the Third Agreement in the record. The Third Agreement
was entered into in 1944 to resolve the Hill-Summy lawsuit…. Nowhere in the agreement is
there any discussion of the Happy Birthday lyrics; nor is there any suggestion that the Hill
sisters transferred their common law rights in the Happy Birthday lyrics to Summy Co.
And thus, the grand finale:
Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights
in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill
sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements
based on the melody, but never any rights to the lyrics. Defendants’ speculation that the
pleadings in the Hill-Summy lawsuit somehow show that the Second Agreement involved
a transfer of rights in the lyrics is implausible and unreasonable. Defendants’ suggestion
that the Third Agreement effected such a transfer is circular and fares no better. As far as
the record is concerned, even if the Hill sisters still held common law rights by the time of
the Second or Third Agreement, they did not give those rights to Summy Co.
In light of the foregoing, Defendants’ Motion is DENIED and Plaintiffs’ Motion is
GRANTED as set forth above. Because Summy Co. never acquired the rights to the
Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do
not own a valid copyright in the Happy Birthday lyrics.
Note that this technically does not say that the song is in the public domain — just that the Hills never gave the copyright to Summy and thus Sumnmy’s (and now Warner/Chappell’s) claim on the copyright is invalid. However, the likelihood of finding someone else with a legitimate claim to the copyright is basically nil. But, technically, this makes it an orphan work because there is at least the potential that someone could magically show up with evidence that someone else has the copyright on the lyrics. This is incredibly unlikely, so all of the people claiming that the song is now in the public domain are probably right effectively. However, technically it could very much be argued that Happy Birthday is now an orphan work, and that this highlights the insanity of orphan works in our system. Also, it’s entirely possible that if the issue ever did go to trial, a court would declare the work in the public domain. But, until then…
Of course, there will be an inevitable appeal, so this is hardly over yet. But the idea that Happy Birthday is locked up by a copyright held by Warner/Chappell is likely gone like that last slice of birthday cake. It’s possible that an appeals court will overturn — but there are so many other reasons why Warner’s claim is questionable that even then it’s hard to see how Warner/Chappell comes out of this with a valid copyright.
Filed Under: copyright, happy birthday, lyrics, melody, orphan works, public domain
Companies: warner music, warner/chappell