The 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:
.@eriqgardner Careful there. The ruling doesn't say the song is in the public domain. It says Warner-Chappel doesn't own copyright in it.
— Naomi Jane Gray (@ShadesofGrayLaw) September 23, 2015
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.