Lawsuit Filed To Prove Happy Birthday Is In The Public Domain; Demands Warner Pay Back Millions Of License Fees

from the about-time dept

Happy Birthday remains the most profitable song ever. Every year, it is the song that earns the highest royalty rates, sent to Warner/Chappell Music (which makes millions per year from "licensing" the song). However, as we've been pointing out for years, the song is almost certainly in the public domain. Robert Brauneis did some fantastic work a few years ago laying out why the song's copyright clearly expired many years ago, even as Warner/Chappell pretends otherwise. You can read all the background, but there are a large number of problems with the copyright, including that the sisters who "wrote" the song, appear to have written neither the music, nor the lyrics. At best, they may have written a similar song called "Good Morning to All" in 1893, with the same basic melody, but there's evidence to suggest the melody itself predated the sisters. But, more importantly, the owner of the copyright (already questionable) failed to properly renew it in 1962, which would further establish that it's in the public domain.

The issue, as we've noted, is that it's just not cost effective for anyone to actually stand up and challenge Warner Music, who has strong financial incentive to pretend the copyright is still valid. Well, apparently, someone is pissed off enough to try. The creatively named Good Morning to You Productions, a documentary film company planning a film about the song Happy Birthday, has now filed a lawsuit concerning the copyright of Happy Birthday and are seeking to force Warner/Chappell to return the millions of dollars it has collected over the years. That's going to make this an interesting case.
More than 120 years after the melody to which the simple lyrics of Happy Birthday to You is set was first published, defendant Warner/Chappell boldly, but wrongfully and unlawfully, insists that it owns the copyright to Happy Birthday to You, and with that copyright the exclusive right to authorize the song's reproduction, distribution, and public performances pursuant to federal copyright law. Defendant Warner/Chappell either has silenced those wishing to record or perform Happy Birthday to You or has extracted millions of dollars in unlawful licensing fees from those unwilling or unable to challenge its ownership claims.

Irrefutable documentary evidence, some dating back to 1893, s hows that the copyright to Happy Birthday to You, if there ever was a valid copyright to any part of the song expired no later than 1921 and that if defendant Warner/Chappell owns any rights to Happy Birthday to You, those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935. Significantly, no court has ever adjudicated the validity or scope of the defendant's claimed interest in Happy Birthday to You, nor in the song's melody or lyrics, which are themselves independent works.

Plaintiff GMTY, on behalf of itself and all others similarly situated, seeks a declaration that Happy Birthday to You is dedicated to public use and is in the public domain as well as monetary damages and restitution of all the unlawful licensing fees that defendant Warner/Chappell improperly collected from GMTY and all other Class members.
The full lawsuit, embedded below, goes through a detailed history of the song and any possible copyright claims around it. It covers the basic history of "Good Morning to You," but also notes that the "happy birthday" lyrics appeared by 1901 at the latest, citing a January 1901 edition of Inland Educator and Indiana School Journal which describes children singing a song called "happy birthday to you." They also point to a 1907 book that uses a similar structure for a song called "good-bye to you" which also notes that you can sing "happy birthday to you" using the same music. In 1911, the full "lyrics" to Happy Birthday to You were published, with a notation that it's "sung to the same tune as 'Good Morning.'" There's much more in the history basically showing that the eventual copyright that Warner/Chappell holds is almost entirely unrelated to the song Happy Birthday to You.

The detail in the filing is impressive, and I can't wait to see how Warner/Chappell replies. As the filing notes, there are a variety of copyright claims around the song, but all are invalid or expired, and the very, very narrow copyright that Warner/Chappell might hold is not on the song itself. In other words, Warner/Chappell is almost certainly guilty of massive copyfraud -- perhaps the most massive in history -- in claiming a copyright it clearly has no right to.
If and to the extent that defendant Warner/Chappell relies upon the 1893, 1896, 1899, or 1907 copyrights for the melody of Good Morning to All, those copyrights expired or were forfeited as alleged herein.

As alleged above, the 1893 and 1896 copyrights to the original and revised versions of Song Stories for the Kindergarten, which contained the song Good Morning to All were not renewed by Summy and accordingly expired in 1921 and 1924, respectively.

As alleged above, the 1899 copyright to Song Stories for the Sunday School, which contained Good Morning to All, and the 1907 copyright to Good Morning to All were not renewed by Summy Co. before its expiration in 1920 and accordingly expired in 1927 and 1935, respectively.

The 1893, 1896, 1899, and 1907 copyrights to Good Morning to All were forfeited by the republication of Good Morning to All in 1921 without proper notice of its original 1893 copyright.

The copyright to Good Morning to All expired in 1921 because the 1893 copyright to Song Stories for the Kindergarten was not properly renewed.

The piano arrangements for Happy Birthday to You published by Summy Co. 111 in 1935 (Reg. Nos. E51988 and E51990) were not eligible for federal copyright protection because those works did not contain original works of authorship, except to the extent of the piano arrangements themselves.

The 1934 and 1935 copyrights pertained only to the piano arrangements, not to the melody or lyrics of the song Happy Birthday to You.

The registration certificates for The Elementary Worker and His Work in 1912, Harvest in 1924, and Children's Praise and Worship in 1928, which did not attribute authorship of the lyrics to Happy Birthday to You to anyone, are prima facie evidence that the lyrics were not authored by the Hill Sisters.
And, now we await Warner/Chappell desperately trying to refute an awful lot of evidence that they've been engaging in millions of dollars worth of copyfraud year after year.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Jun 13th, 2013 @ 1:34pm

    It be awesome to see this pursued to a judgment. Not sure how likely that is.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Jun 13th, 2013 @ 1:45pm

    i hope this is sorted out quickly and Warner/Chappell get stung in the same way as they have stung others. the other thing is, when will politicians realise that they need to move their loyalty from the bank accounts of the entertainment industries towards the people. if not, there is gonna be more shit for them to deal with!

     

    reply to this | link to this | view in thread ]

  3.  
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    Anonymous Coward, Jun 13th, 2013 @ 1:52pm

    This is long past due.

     

    reply to this | link to this | view in thread ]

  4.  
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    Cowards Anonymous, Jun 13th, 2013 @ 1:58pm

    Happy Lawsuit To You!
    Happy Lawsuit To You!
    This Song Is Public Domain,
    Happy Lawsuit To You!

    (To the tune of Good Morning To You)

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    RD, Jun 13th, 2013 @ 2:02pm

    Reap what you Sow

    The copyright ShillTrolls hate it when the law isn't on their side like they thought it was. They hate it when the law is enforced, unless when it's against the general public.

     

    reply to this | link to this | view in thread ]

  6.  
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    gorehound (profile), Jun 13th, 2013 @ 2:03pm

    Re:

    Happy Death to MAFIAA
    Happy Death to MAFIAA
    Sue Warner for every Dime they Got
    Sue Warner and make em Eat Snot !

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Jun 13th, 2013 @ 2:07pm

    .......What a day for a Birthday, lets all eat some cake.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    anonymouse, Jun 13th, 2013 @ 2:11pm

    Copyfraud

    They owe society so much they should just claim complete bankruptcy and put all their works in the public domain for the next 75 years or the life of the copyright on any work they have until the copyright runs out. Also every person that has received over the average wage has received stolen money so they should be forced to pay that money back to the people they stole it from, the average wage being 34 000 a year i believe

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Jun 13th, 2013 @ 2:22pm

    Bravo

    Bravo Good Morning To You Productions!

    Warner / Chappell know they have been lying to the public about this for decades.

    When they lose, let's see if "the industry" cleans up their act before government steps in and introduces serious penalties for willfully misrepresenting copyright. Such penalties are long overdue.

     

    reply to this | link to this | view in thread ]

  10.  
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    Chosen Reject (profile), Jun 13th, 2013 @ 2:23pm

    I've been thinking about doing the same thing with Steamboat Willie. Unfortunately, I don't have the money. I wonder where the GMTY people are getting their funds. Wherever they're getting it, I hope it doesn't run out. That will probably be Warner/Chappell's biggest tactic.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Applesauce, Jun 13th, 2013 @ 2:32pm

    Warner's next move...

    A modest contribution to certain members of Congress to correct this oversight. Simply extend the copyright retroactively (it's been done before). We obviously need to protect the artist's creativity!!!

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Jun 13th, 2013 @ 2:33pm

    Gee Whiz! Prenda is so yesterday. Onwards to the second feature.... Yet, another good reason to continue eating popcorn.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Jun 13th, 2013 @ 2:37pm

    Re:

    The cake is a lie.

     

    reply to this | link to this | view in thread ]

  14.  
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    The Mighty Buzzard (profile), Jun 13th, 2013 @ 2:38pm

    Re: Copyfraud

    And extorting fees for or preventing the use of something you've no legal claim to is honest work then? Go set up a toll booth on the nearest highway and let me know how that works out for you.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Jun 13th, 2013 @ 3:16pm

    If only there was a provision/punishment/penalty for "willful public domain infringement."

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Jun 13th, 2013 @ 3:18pm

    Re:

    And to think - the pro-extortion people said so-called "piracy" would lead to a reduction in popcorn sales.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Jun 13th, 2013 @ 3:20pm

    Re: Bravo

    Warner is a member of the RIAA. Government stepping in to stop one of the backers of the very lucrative donor RIAA is pretty low. Warner will likely force a NDA-strapped settlement through, bow down fast if they feel they will loose or force a Pyrrhus victory for Good Morning To You Productions (read: Stall untill they go bankrupt). It is also possible they will try and fight to win.

    In half the cases the primary answer from Warner is gonna be pretty irrelevant (Stall/settle). If they wanna bow down this is going to be a weak defence, trying to make their previous actions irrelevant to the current case (complete damage control). If they try to win, they will have to have some very convincing counter-arguments.

    The only argument for government taking a stance is if Warner fights and loose the case.

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    DannyB (profile), Jun 13th, 2013 @ 3:39pm

    Dear Judge

    Time Warner respectfully submits to the court that Time Warner is not the correct party to be the defendant in this lawsuit.

    Clearly this is all Google's fault.

    First, Time Warner believes that the sisters did have copyright in 1983, but Google is failing to find it.

    Second, Time Warner believes that the copyright was renewed in 1962, but again Google is failing to find it.

    Third, Google was negligent in not having a large prominently labeled magic button entitled "Help Time Warner know which copyrights it owns".

    Time Warner firmly believes in intellectual property, that it should own all of it, that nothing belongs in the public domain because that diminishes value, and that intellectual property of all kinds should last forever.

    It is quite telling that pirate Google believes none of these things.

    Respectfully Submitted,
    Time Warner

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    DannyB (profile), Jun 13th, 2013 @ 3:41pm

    Re:

    Dear Time Warner,

    Did you know that Prenda is available to represent you? And at low, low rates!

    Prenda Law, like Time Warner, firmly believes in intellectual property and that the world owes copyright owners and their progeny a living forever, and ever, and ever. Amen.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    The Real Michael, Jun 13th, 2013 @ 3:49pm

    Warner/Chappell have no right to own the song Happy Birthday. They didn't compose it, therefore it's not theirs to take.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    S. T. Stone, Jun 13th, 2013 @ 3:57pm

    Huh. None of the usual trolls showed up this time around.

    It's a birthday miracle.

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    Grover (profile), Jun 13th, 2013 @ 4:58pm

    Mike. . .

    This...this is beautifully written. I've had a mental orgasm, one that I shall never forget. I can only hope that these slimey aholeios bite the big one! Karma, thy name will always be upon our lips!

     

    reply to this | link to this | view in thread ]

  23.  
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    That One Guy (profile), Jun 13th, 2013 @ 6:42pm

    My best guess is the first 'counter argument' from Warner is going to be a nice hefty check, a nicely binding NDA, and hoping that the ones bringing the lawsuit can be bought off, because if that doesn't work things could get rather unpleasant for Warner here.

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    Greevar (profile), Jun 13th, 2013 @ 7:07pm

    Re:

    That's because the politicians and the special interests are the same people. Rich people get themselves into office so they can collaborate with their rich friends in office to form legislation that is sympathetic to their own financial aspirations and business friends. Basically, rich people get into office and vote for laws that make them more money.

     

    reply to this | link to this | view in thread ]

  25.  
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    Greevar (profile), Jun 13th, 2013 @ 7:08pm

    Re: Re:

    This was a triumph!

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Jun 13th, 2013 @ 7:08pm

    Official Warner/Chappell Response:

    We've got more lawyers
    We've got more lawyers
    We can spend money forever
    Fuck off and die

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Anonymous Coward, Jun 13th, 2013 @ 7:28pm

    Re: Re: Re:

    But did you make a note there? Huge success? Or is it too hard to overstate your satisfaction?

     

    reply to this | link to this | view in thread ]

  28.  
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    Anonymous Coward, Jun 13th, 2013 @ 9:39pm

    Happy Birthday to the ground mother fucker.

     

    reply to this | link to this | view in thread ]

  29. This comment has been flagged by the community. Click here to show it
     
    identicon
    Subservient White Cattle, Jun 13th, 2013 @ 11:09pm

    Re: White Extinction

    You are oblivious to what is happening behind the scenes. this is not left vs right, GOP vs Dems, Socialism vs liberty. This is war against White people.

    Why do hostile globalist elite defend Israel as a Jewish ethnostate with Jewish only immigration, but ravage White majority Europe/North America into a multi-ethnic, multi-cultural Gulag with dystopian non-White colonization?

    The world is 93% non-White, only 7% White. But 3rd world colonizers, Muslims, Sikhs, Hispanics, are aggressively advancing their agenda to annihilate gullible Whites, just as China annihilates Tibet.

    How long will gullible Whites cuckold for murderous anti-White elite, who confiscate our guns, infiltrate/subvert our banks/FBI/CIA, indoctrinate White kids in academia/mass media, plunder White jobs/wages, & butcher White soldiers in bankrupting wars?

    "Native" Americans invaded from East Asia. Yellow & Brown races committed 10-times more genocide, slavery, imperialism than Whites. Since Old-Testament, Whites have been victims of Jewish/Crypto-Jewish, Turkic, Muslim, N.African imperialism, slavery, genocide.

    Gullible Whites should reject subversive ideologies- libertarianism, feminism, liberalism- & reject hostile slanders of racism. Peace to all humanity, but White people must organize to advance their interests, their fertility, their homelands. Spread this message. Reading list: goo.gl/iB777 , goo.gl/htyeq , amazon.com/dp/0759672229 , amazon.com/dp/1410792617

     

    reply to this | link to this | view in thread ]

  30.  
    icon
    Coyote (profile), Jun 13th, 2013 @ 11:35pm

    Re: Re: White Extinction

    What kind of drugs are you on? I would most certainly wish to purchase them from you, for a hefty sum of three fifty.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Jun 14th, 2013 @ 2:01am

    Re: Re: Bravo

    It is unlikely that Good Morning To You Productions would want to settle. Of course stalling will definitely be the case.

    Once Warner / Chappell has lost the case, more cases will follow.

    It is a slow change, one that takes so much time... but it is an irreversible one. In 5 to 10 years the public will have won.

     

    reply to this | link to this | view in thread ]

  32.  
    icon
    Niall (profile), Jun 14th, 2013 @ 2:55am

    Re: Re: White Extinction

    The only cattle I see are the brain-dead idiots who espouse this utter bullcrap. Look! People with human DNA did the same as other people with human DNA!

    I think you missed the part where all humans, including those with a melanin deficiency (and in some cases, a brain deficiency) came from Africa.

    I'm also pretty sure that, at the risk of Godwinning, that certain early-to-mid-20th Century dictators were also as melanin/brain-deficient as yourself and caused massive death and destruction, and I'm pretty sure that it was the melanin/brain-deficient types who were running slavery in the Western hemisphere.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Plum, Jun 14th, 2013 @ 4:46am

    Re: Re:

    Not Time Warner, Warner Music. There's a BIG difference!

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Pragmatic, Jun 14th, 2013 @ 5:53am

    Re:

    And many more!!!

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    Anonymous Coward, Jun 14th, 2013 @ 6:25am

    Re: Re: White Extinction

    "The world is 93% non-White, only 7% White"

    "Yellow & Brown races committed 10-times more genocide, slavery, imperialism than Whites."

    Given your population estimates vs counts of grievous acts it sounds like a white person is far more likely to commit genocide, slavery, imperialism than a non white person.

    Perhaps you should at least pull out a calculator first before you shoot holes into your own arguments. It seems to me that whites should not have guns since they clearly can't be trusted with them.

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    George Bates, Jun 14th, 2013 @ 6:33am

    Whether or not they win the case isn't going to affect anyone here .... Why does it matter so much. Record companies do a huge amount if good for the recording industry and with music pirating of nowadays, some of the profits from that one song might be helping keep then afloat. I say why make such a fuss about it.

     

    reply to this | link to this | view in thread ]

  37.  
    identicon
    Anonymous Coward, Jun 14th, 2013 @ 7:01am

    Re: Re: White Extinction

    WTF?????

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    Anonymous Coward, Jun 14th, 2013 @ 7:25am

    Re:

    Is there a Kickstarter campaign or anything to help fund this case through to completion?

     

    reply to this | link to this | view in thread ]

  39.  
    icon
    Anonymous Howard (profile), Jun 14th, 2013 @ 7:27am

    Re:

    Let me get this straight:
    - You think it's not a big deal if a record company scam millions per year in shady, extortion like deals
    - You think it's ok to abuse the copyright system
    - You think record companies do a huge amount of good (to who?), and deserve all the help they can get to stay afloat
    - You think we actually need record companies (if they can't persist, then no, the marked do not need them.)
    - You think music piracy is their main plight

    I have only one question: WTF?

     

    reply to this | link to this | view in thread ]

  40.  
    identicon
    Janet, Jun 14th, 2013 @ 7:57am

    HAPPY BIRTHDAY

    That is the most rediculous thing I've ever heard of!!!!!!
    Absolutely!!!!!!!

    So SAD and So BAD !!!!!!!!!

     

    reply to this | link to this | view in thread ]

  41.  
    icon
    Greevar (profile), Jun 14th, 2013 @ 9:53am

    Re: Re: Re: Re:

    I do what I must, because I can.

     

    reply to this | link to this | view in thread ]

  42.  
    identicon
    Nimmer, Jun 14th, 2013 @ 11:41am

    Re:

    >>when will politicians realise that they need to move their loyalty from the bank accounts of the entertainment industries towards the bank accounts of the tech industry?

     

    reply to this | link to this | view in thread ]

  43.  
    identicon
    Anonymous Coward, Jun 14th, 2013 @ 5:55pm

    Time to buy a law revision

    Geez, looks like the execs at Warner Brothers are going to have to buy a law change and possible a court or two!

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    Marshall Scott Veach, Jun 15th, 2013 @ 6:36am

    I am far from an expert in this field, but won't Warners just dot he same thing Disney does--? Spend enough money to make a law that carves out happy birthday as a special case and then apply it retroactively?

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Joren De Wachter, Jun 15th, 2013 @ 7:32am

    TEDx presentation on IP

    This is my TEDx presentation on IP - it uses "happy birthday" to make a point that many people would agree with.

    http://youtu.be/E5BOBs3Nmbw

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    Anonymous Coward, Jun 15th, 2013 @ 8:27pm

    Re:

    And you smell like one, too!

     

    reply to this | link to this | view in thread ]

  47.  
    identicon
    @ShaunDreclin, Jun 19th, 2013 @ 5:43pm

    Response to: George Bates on Jun 14th, 2013 @ 6:33am

    Record companies barely pay the artists 1% of what they earn. They take advantage of talented people and protect their own interests with bribes and lawyers. People make much more money publishing their own music now.

     

    reply to this | link to this | view in thread ]

  48.  
    identicon
    The Libertarian, Sep 3rd, 2013 @ 11:39am

    re: ShanDreclin and this

    True, unless you happen to be one of the chosen slaves. :(

     

    reply to this | link to this | view in thread ]


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