September 30, 2015 Practice Points

California Court Rules No Copyright Protection for "Happy Birthday to You"

The catalyst for this litigation: Warner's demand that plaintiff Good Morning to You Productions, which planned to make a documentary about the song, pay a $1,500 license fee as a condition of incorporating "Happy Birthday" into the documentary's production.

By C. Dennis Loomis

Last week, in Rupa Marya, et al. v. Warner/Chappel Music, Inc., et al., No. CV 13-4460-GHK (C.D. Cal. Sept. 22, 2015), U.S. District Judge George H. King ruled (log-in required) that defendant Warner/Chappel Music has no enforceable copyright in the ubiquitous song "Happy Birthday to You." The ruling resolves cross motions for summary judgment filed in November 2014 by Warner and by the representative plaintiffs in this class action suit, challenging Warner's assertion of copyright in the song and seeking recoupment of millions of dollars of licensing fees collected by Warner over the years. The catalyst for this litigation: Warner's demand that plaintiff Good Morning to You Productions, which planned to make a documentary about the song, pay a $1,500 license fee as a condition of incorporating "Happy Birthday" into the documentary's production.

The controversy focused exclusively on the lyrics to "Happy Birthday to You," all parties conceding that the famous musical melody had passed into the public domain long ago. Copyright law for musical compositions recognizes separate, independent rights in the music and in the words accompanied by the music. Warner asserted that it was the successor to a copyright covering the lyrics that had been registered in 1935. The plaintiffs contended that that copyright registration only covered a particular piano arrangement of the music and did not cover the lyrics, which plaintiffs claim are in the public domain.

The melody that we all know as "Happy Birthday" was originally composed in the late nineteenth century as a children's song with different lyrics, titled "Good Morning to You," by sisters Mildred and Patti Hill. An evidentiary record resembling an archeological dig, covering documents, press reports, court testimony and other material from the turn of the twentieth century through the early 1940s, could not conclusively resolve who actually wrote the lyrics (maybe Patti Hill, maybe someone else). But Judge King, in an exhaustive 43-page memorandum and order, emphatically concluded that Warner had failed to produce any evidence sufficient to prove, or even to support a reasonable inference, that the author of those famous words had ever transferred her copyright in the "Happy Birthday" lyrics to the entity that had filed the 1935 copyright registration. Therefore, Warner's claim of copyright ownership as successor in interest to that copyright registration fails. As an extension of this ruling, both the lyrics and the music of "Happy Birthday" are presumably in the public domain.

Subject to any reconsideration or modification of this ruling, the court will next turn to adjudication of the plaintiff class's claims for recoupment of licensing fees unlawfully collected by Warner based on a non-existent copyright on the "Happy Birthday" lyrics. This decision is not yet final and is subject to appeal.

Keywords: intellectual property, litigation, Happy Birthday to You, music copyrights

C. Dennis Loomis is with BakerHostetler in Los Angeles, California.


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C. Dennis Loomis – September 30, 2015