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September 30, 2015 Practice Points

Court Rules that the "Happy Birthday" Song Is Not Protected by Copyright

Chief Judge George H. King of the Central District of California recently ruled that the copyrights in the "Happy Birthday" song are not owned by Warner/Chappell Music, Inc.

by Antonieta Pimienta

Chief Judge George H. King of the Central District of California recently ruled that the copyrights in the "Happy Birthday" song are not owned by Warner/Chappell Music, Inc., a decision that the plaintiffs' attorneys say puts one of the most popular songs in history into the public domain. See Rupa Marya v. Warner/Chappell Music, Inc., No. 2:13-cv-04460-GHK-MRW (C.D. Cal. Sept. 22, 2015). The ruling is the latest development in a 2013 lawsuit brought by a group of filmmakers and artists against Warner/Chappell, which reportedly had been collecting millions of dollars in annual licensing fees from the song.

According to Chief Judge King, Warner/Chappell never had the right to charge for use of the song. Warner/Chappell had been enforcing a copyright since 1988, when it bought the successor company to the Clayton F. Summy Company (Summy Co.), which had purportedly acquired the rights from the song's original authors. Rupa Marya, slip op. at 29. However, the court ruled that Summy Co. had only acquired the rights to the song's melody and to piano arrangements based on the melody, which had long since passed into the public domain. Id. at 31–32.As for the lyrics, no evidence existed that Summy Co. had ever actually acquired the rights to them. The original authors never asserted a copyright claim for the lyrics, meaning Warner/Chappell never owned them either. The court explained, "[n]owhere . . . is there any suggestion that the [original authors] transferred their common law rights in the Happy Birthday lyrics to Summy Co. . . . 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." Id. at 36, 43.

Central to the ruling was an exhaustive historical analysis of contracts and other transactions related to the song. So, besides being a big win for those who want to use the song without paying for it, the ruling highlights a hot issue in the field of copyright law—that long copyright terms and complicated chains of title may make it difficult to locate the person or entity authorized to license a work (or deny a license, as the case may be). When works have no clear owner, incorporating them into new works becomes risky. This is particularly problematic for attorneys seeking to help their clients with risk management. The ruling thus serves as a reminder of how crucial it is to pay heed to the tedious yet indispensable task of due diligence as to the chain of title when handling copyright works.

Keywords: chain of title, commercial and business, copyright, Happy Birthday Song, license, licensing, litigation, public domain, intellectual property

Antonieta Pimienta is with Skadden, Arps, Slate, Meagher & Flom LLP in Los Angeles, California.

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