Plot Thickens in “Happy Birthday” Suit

Two years ago I reported here on a lawsuit filed by NY filmmaker Jennifer Nelson trying to strike Warner Music’s copyright in the song “Happy Birthday.” She had been filming a documentary about the song and was charged $1,500. by Warner to use the song in her film. She then filed her suit seeking return of the $1,500 (and all other license fees paid to the class of plaintiffs she wants to represent) arguing that the song was actually in the public domain.

Warner has been fighting tooth and nail to keep their hands on the $2,000,000.00 they get each year for licensing the song. They apparently dropped a pile on new documents on Ms. Nelson related to the song recently. According to Ms. Nelson’s lawyers, Warner handed over “approximately 200 pages of documents [Warner/Chappell] claim were ‘mistakenly’ not produced during discovery, which ended on July 11, 2014, more than one year earlier.” Now Ms. Nelson’s lawyers are saying that some of those documents are “the smoking gun” they have been looking for and prove conclusively that the song belongs to all of us.

The “smoking gun” is a 1927 version of the “Happy Birthday” lyrics, predating Warner/Chappell’s 1935 copyright by eight years. In 1927, Chicago music publisher The Cable Company produced the 15th edition of the children’s song book called The Everyday Song Book (Graded). It included the “Good Morning” and “Birthday Song,” which featured the melody for “Good Morning To You,” a song dating back to the 19th century, combined with Patty Hill’s lyrics for both “Good Morning” and “Happy Birthday.” Further analysis showed that the song also appeared in editions going as far back as 1922, which in the plaintiffs’ view “proves conclusively” that “Happy Birthday” entered the public domain no later than that year. The song was printed without a copyright notice unlike other songs in the book which contained the notice. Instead, it included a notice that read “Special permission through courtesy of The Clayton F. Summy Co.” The Summy company is the publisher whom Warner/Chappell had maintained never authorized any pre-1935 publishing of the “Happy Birthday” lyrics. So much for that argument I guess. This book shows they licensed it (without copyright notice) in 1922.

Interestingly, that very important line of text published underneath the song’s lyrics was “blurred almost beyond legibility” in the copy that Warner/Chappell handed over in discovery. Plaintiffs’ lawyers noted that it’s “the only line of the entire PDF that is blurred in that manner.” Imagine that – Warner and its team of lawyers were incapable of producing a clear PDF of only one page and the only thing not clear on the only unclear one page is the one line that may cost them the case. I hate when that happens.

The Nelson legal team didn’t stop there however. They decided to go and try to find their own versions of the songbook – and they did just that. They located a first edition published in 1916, which didn’t have the song, and then later versions published 1922 and onward which did include the song and which printed it without a copyright notice. That’s a shot through Warner’s heart because under the 1909 Copyright Act which was then in effect, to be protected a published work had to include the word “Copyright,” or the abbreviation “Copr., ” or the “©” symbol. Publishing a work without any of those notices put the work forever into the public domain. So Ms. Nelson’s attorneys are arguing that the 1922 publication without proper notice forfeited copyright in the work. Even if the court rules that the work was still copyrighted in 1922 because it was contained in a songbook that was itself entirely copyrighted at that time, a 1922 copyright would expire in 1949 under the 1909 Copyright Act unless it had been renewed. And even if it had been renewed, renewal would only get you another 26 years meaning that the renewed copyright would have expired in 1997.

Warner is now scrambling to try and show that this version is different than the version they are relying on. But motions have been filed and Judge George King, who is the Chief Judge of the Federal District Court for the District of Central California will have to make the decision which should come down late this year or sometime early next year. One side will then really have something to sing about.

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