God Only Knows Who Owns the “Happy Birthday” Lyrics

9771579591_2556f67699_bThe world's most popular English-language song is (possibly) still under copyright, only now we don't know who owns the rights.

Earlier today US District Court Judge George King issued a ruling granting summary judgement to the film maker who had sued Warner/Chappell over its claim to own the copyright on the song, Happy Birthday, writing in part that "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."

While some sites are reporting that the song is out of copyright and into the public domain, that is not what the judge wrote.

According to copyright attorney Naomi Jane Gray, the ruling did not say that the lyrics were in the public domain:

And FYI: I got my copy of the ruling from Gray's website.

What the ruling (PDF) says is that Warner/Chappell does not own the lyrics to Happy Birthday. The lyrics had supposedly been written by sisters Patty Hill and Mildred J. Hill, but the ruling voided their claim (and named a couple other possible copyright holders).

What the ruling does not say is exactly who owns the copyright on the lyrics to Happy Birthday. That is still up in the air.

And while we're on the topic, the melody for the song Happy Birthday went out of copyright in 1949. That copyright can be traced back to a song called Good Morning to all, which was written in 1893 by sisters Patty Hill and Mildred J. Hill. The copyright expired at the end of the second 28 year term.

According to today's ruling, the alternate set of lyrics that make up Happy Birthday were created at a later date by someone other than the Hill sisters, which means that they never had the copyright and thus could not transfer the copyright to anyone.

So what does this mean?

The short version is that if you want to hum the tune, play it on a nose harp, or arrange it for the koto, you're fine.

But if you recite, publish, or perform the lyrics, you could be violating someone's copyright.

To be clear, you are probably not violating someone's copyright; as this is almost certainly a pre-1923 work, the copyright has expired.

But we don't know that with absolute certainty, and that is why Happy Birthday has gone from being the most popular English language song to being the best-known example of an Orphan Work. Someone could own the copyright, only we don't know who.

Orphan works are a known problem, and it one that the US Copyright Office is trying to solve. The USCO has recently proposed a solution which would resolve today's issue by enabling those who wish to use an orphan work to register and pay a fee.

But that is only a proposed solution, so it matters less today than the fact that Warner/Chappell has been collecting license fees on a copyright which it did not own or control.

That copyright was worth $2 million a year, according to estimates floating around. That is of course a wild guess; Warner/Chappell hasn't said how much they earn from the Happy Birthday copyright, but we're going to find out eventually.

The LATimes reports that the plaintiff's attorneys  "will move next to qualify the lawsuit as a class-action, in an effort to recoup millions of dollars in royalties that Warner/Chappell has collected on the tune over the years".

Copyright law has a statute of limitations that lasts three years, which (assuming that the law blogs I checked were correct) means that everyone who just learned that they can sue Warner/Chappell now has three years to file that suit.

Warner/Chappell is looking at paying back tens of millions of dollars in license fees, if not more.

Of course, those fees might eventually have to be paid to someone else, but that is a concern for tomorrow. We'll burn that bridge when we come to it.

image by melenita2012

About Nate Hoffelder (11579 Articles)
Nate Hoffelder is the founder and editor of The Digital Reader:"I've been into reading ebooks since forever, but I only got my first ereader in July 2007. Everything quickly spiraled out of control from there. Before I started this blog in January 2010 I covered ebooks, ebook readers, and digital publishing for about 2 years as a part of MobileRead Forums. It's a great community, and being a member is a joy. But I thought I could make something out of how I covered the news for MobileRead, so I started this blog."

8 Comments on God Only Knows Who Owns the “Happy Birthday” Lyrics

  1. If a tree sings Happy Birthday in a forest, and no lawyers are around to document it, did it violate a copyright?

  2. Other than Warner/Chappell no longer being able to legally collect fees, if feels like a “have your cake and eat it too” ruling. We have no legit person who owns it but it MUST be owned by someone rather than being used by everyone!

  3. So I guess now the Author’s Guild will be saying that because this is an “orphaned work,” nobody should be allowed to perform it, sing it, read it, or even think about it, until the copyright holder is found.

  4. Careful about throwing that “1923” date around. That only applies to works that were legally published in the US prior to that date. If the work wasn’t published, or its publication wasn’t authorized, or it was published elsewhere, different rules apply.

    Since we don’t know where and when the “Happy Birthday” lyrics were first legally published, if ever, the “1923” date isn’t of any help. The lyrics were published in the US back in 1912, but that seems to have been unauthorized. They were published by Summy-Birchard under authority of the Hills in 1935, but now that’s apparently not an authorized publication, either.

    On the other hand, if the Hills didn’t legally hold the copyright, then their 1935 copyright registration wasn’t valid. In that case, it seems likely that copyright to the lyrics was never legally registered.

    That brings us back to the other question: were the lyrics ever legally published? It would seem not, since we don’t know who held/holds the copyright. In the US, an unpublished work by an unknown author enters public domain 120 years after its creation. But we don’t know the date of the lyrics’ creation, either. So we’re back to the 1912 unauthorized publication as the oldest extant document. In which case the words would enter public domain in 2032.

  5. I am full of cold so I could be going mad but it looks like you have repeated a paragraph there.

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  1. "Happy Birthday" is (presumably) now copyright free | Anthony's Notes

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