Last week, NY filmmaker Jennifer Nelson brought a lawsuit in Federal court to block Warner/Chappell, the publishing arm of media giant Warner Music Group, from claiming it owns the copyright to “Happy Birthday,” perhaps the world’s most commonly performed song.
Ms. Nelson’s latest documentary is about the song “Happy Birthday” and when she wanted to put a rendition of it into her movie, she was told that she would have to pay $1,500.00 to Warner for the right to do so. Ms. Nelson is quoted in the NY Times as saying “I never thought the song belonged to anyone. I thought it belonged to everyone.” That thought is probably shared by the majority of folks. But the song actually still generates around $2 Million per year in licensing fees to Warner which bought the rights in 1988 when it acquired Birchtree Ltd., a small company that had the song in its publishing catalog.
But through her research for the film, Nelson found that, in the late 1800s, two sisters wrote a song with the exact same melody called “Good Morning to All.” Her lawyers now claim that the song “Happy Birthday” is merely an adaptation – “a public adaptation”- of that original song. Her study is also supported by an article by Professor Robert Brauneis of George Washington University School of Law called “Copyright and the World’s Most Popular Song.” In the article, Professor Brauneis said “It is doubtful “Happy Birthday’ . . . is still under copyright.” The Copyright act of 1909 set the maximum term of copyright at two 28 year terms – or 56 years in total. The last major revision of that act occurred in 1976. The 1976 Act substantially increased the term of protection. (Many folks have opined that it was extended to protect Disney’s copyright over Mickey Mouse). Section 302 of the Act extended protection to “a term consisting of the life of the author and 50 years after the author’s death.”In addition, the Act created a static seventy-five-year term (dated from the date of publication) for anonymous works, pseudonymous works, and works made for hire. The extension term for works copyrighted before 1978 that had not already entered the public domain was increased from twenty-eight years to forty-seven years, giving a total term of seventy-five years. In 1998 the Copyright Term Extension Act further extended copyright protection to the duration of the author’s life plus seventy years for general copyrights and to ninety-five years for works made for hire and works copyrighted before 1978. By all accounts, a work written in the late 1800s would be in the public domain.
This lawsuit is not about the $1,500.00 Ms. Nelson was asked to pay. The suit seeks to be given class action status on behalf of all others who paid licensing fees for the song since 2009 (the period covered by the statute of limitations). At $2 MM per year on average, that could cost Warner between $8-$10MM in returned licensing fees alone. It would also mean that movie-makers could stop having actors sing “For He’s a Jolly Good Fellow” in place of “Happy Birthday.” But even more importantly, we would not be subjected to chain restaurants’ own tortured inventions of a Happy Birthday melody to sing to guests at tableside. For that reason alone, I’m rooting for Ms. Nelson on this one.