Charity Pops Up Claiming That It Holds The Copyright On Happy Birthday

from the zombie-copyright dept

It ain’t over yet, folks. While many in the press went on and on back in September that the song “Happy Birthday” had been declared in the “public domain,” as we pointed out, that’s not what the judge said. He only said that the Summy Co. did not hold the copyright, because it seemed clear from a lawsuit back in the 1940s that the Hill Sisters (who sorta wrote the song — long story) only assigned the rights to the music and not the lyrics — and everyone agrees the music is now in the public domain. As we pointed out, this actually made the song an “orphan work”, which created a new kind of mess, and as we noted, it was entirely possible that a third party could now make a claim to holding the copyright — though we thought it was unlikely.

Oh, how naive of us.

While Warner/Chappell is asking the judge to give the copyright back to it, and the filmmakers who brought the suit are asking for the song to be declared definitively in the public domain, who should pop up out of nowhere… but… the heirs of the Hill Sisters, who are now claiming that if Warner/Chappell (via the Summy Co.) don’t hold the copyright, then clearly the heirs of the Hill Sisters do:

Until this ruling, The Hill Foundation, Inc. (?Hill Foundation?) and the Association for Childhood Education International (?ACEI?) (collectively ?Applicants?) believed the rights to the Song had been properly assigned to Summy Co. by the Song?s original author, Patty Hill, and her sister, Jessica Hill. Indeed, the Applicants have been accepting royalties from the Defendants for over twenty (20) years as the beneficiaries of Patty and Jessica Hill?s estates pursuant to what they believed was a valid assignment from the Hill Sisters to the Summy Co. As a result of the Court?s ruling, it is now likely that Applicants are the valid owners of the copyrights to the Song, and none of the current parties are able to adequately represent Applicants? interests. For these reasons, Applicants respectfully request that this Motion to Intervene be granted, allowing them to protect their interests in the copyrights to the ?Happy Birthday to You? lyrics.

Yup. The copyright on Happy Birthday is like a zombie that just keeps coming back again.

So, yeah, we warned that this was possible, but thought it wasn’t likely — but we should have known better. At least we didn’t falsely report that the song had been declared in the public domain like most everyone else in the press. Of course, whether or not the heirs of the Hill Sisters have a legitimate claim here is another fairly large question — and gets us right back to the question of whether or not the song really ought to be declared in the public domain. After the original ruling came out, Glenn Fleishman, over at Fast Company, was one of the only reporters who actually explored what arguments the Hill heirs might have:

The only likely group that has standing to pursue legal action if they demanded royalties and didn’t receive them is the charity that became the ultimate beneficiary of the Hills, the Association for Childhood Education International (ACEI). It has received a third of royalties collected by Warner-Chappell for decades, or roughly $750,000 a year in recent years. Should ACEI choose to attempt to enforce rights, sue Warner-Chappell, or carry out any other action, it has just two bases on which it could proceed. (Diane Whitehead, the executive director of ACEI, says, “We are not commenting at this time.”)

Patty Hill could have created the lyrics, written them down in some form, and never authorized publication. Unpublished manuscripts retain protection for 70 years following the last author’s death, even for works this old. Patty died in 1946, and thus in this scenario, copyright expires on January 1, 2017. (Mildred likely had nothing to do with the lyrics, but her earlier demise makes that irrelevant.)

However, the Hill sisters in the 1940s lawsuit maintained that they had made a transfer of rights in 1935. These are the rights that the judge said didn’t exist. That ruling could leave the unpublished rights active. But Brauneis says, “We don’t know that Patty Smith Hill ever wrote anything down.” No manuscript has ever been mentioned nor presented across multiple trials and 125 years. This also requires that the Hills never “abandoned” the rights, a complicated concept, but Brauneis says his reading of the judge’s ruling is that King leaned toward that interpretation.

There was actually ample discussion during the court case and in the judge’s ruling suggesting that if it’s true that the Hills at some point had the copyright on “Happy Birthday” (even though it’s not at all clear that they even came up with the lyrics), that Patty Hill almost certainly abandoned the rights under the laws at the time. The matter is made much more complex by the interplay of a few different copyright regimes, including common law copyright found in various state laws at the time, but it strikes me that the heirs of the Hill Sisters have an uphill battle here. But, until the court actually declares the song in the public domain — contrary to what some people will tell you — you probably should not go around singing the song in public claiming that you’re free to do so.

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Companies: acei, association for childhood education international, hill foundation inc., warner/chappell

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Comments on “Charity Pops Up Claiming That It Holds The Copyright On Happy Birthday”

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Anonymous Coward says:

terrible mess

Whenever a wealthy person dies without a will, claimants to the estate generally have a very limited time in which to stake their claim. Yet when copright is involved, people can still be popping up out of the woodwork many decades later. This in just another example of why the whole copyright system in the US is a terrible mess (except to litigation attorneys, of course).

And with TPP and other “free trade” international treaties, we’re continuously trying to forcefeed this recycled vomit to the rest of the world.

TechDescartes (profile) says:

Where There's a Will...

As we pointed out, this actually made the song an “orphan work”, which created a new kind of mess, and as we noted, it was entirely possible that a third party could now make a claim to holding the copyright — though we thought it was unlikely.

Oh, how naive of us.

Yes, you forgot the adage: Where there’s a will…there’s a relative.

Anonymous Coward says:

There is the problem

Here is the problem with this whole thing:

No manuscript has ever been mentioned nor presented across multiple trials and 125 years.

This whole mess would be moot if copyright were set to expire after 28 years, as it was originally written (14 years, plus a non-automatically renewable extension of 14 years.)

Heck, we wouldn’t even be talking about this now if copyright were a more reasonable maximum of 70 years (14 years, plus four non-automatically renewable 14-year extensions 14+14+14+14+14=70).


Richard (profile) says:

Re: It's only 6 words long!

The lyrics consist of 6 words (minus the repetition)

Actually it consists mostly of the title – and song titles are not copyrightable- hence the multiple versions of “The Power of Love”
That leaves the words “to you” and “dear” – but they are present in the original “Good morning to all” in exactly the same place – relative to the music. Finally there is the “insert name here” concept – but that is an idea not an expression and hence is not copyrightable.

In conclusion it seems to me that “Happy Birthday” contains NO COPYRIGHTABLE ELEMENTS and hence has always been in the public domain.

Anonymous Coward says:

Re: Re: It's only 6 words long!

Actually, that’s a REALLY good point. When you add in that many people sing the song title for lines they can’t remember in a song, and that the tune is no longer under copyright, that means that there’s no logical argument for asserting copyright anymore, no matter what the claimants may state.

If it’s a derivative work from “Good Morning To All” (which is public domain), “Happy Birthday” is the title, and “to you” and “dear” are in the original, there are no original elements in the song, thus nothing to claim copyright over.

I think I’m going to continue to let my kids sing it in public (like they were doing yesterday) and use that as my excuse should any lawyers come calling.

That One Guy (profile) says:

Re: There's the law...

It has received a third of royalties collected by Warner-Chappell for decades, or roughly $750,000 a year in recent years.

Yeah, most ‘academic discussions’ don’t center around something that involves approximately $2.25 million a year.

Now you may be rolling in the money, such that a couple million is negligible pocket change and not something to worry about, but for most of us, a case involving something related to that much money(especially if it’s being attained fraudulently) is anything but trivial, and is in fact worth discussing.

David says:

I yearn for the day

I yearn for the day when we’ll finally be able to sing “happy dying day” to the copyright of “Happy Birthday”. Or actually, the copyright of any old song, what with the constant retroactive copyright extensions which are a clear breach of the Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Any mathematician will tell you that “limited Times to Authors and Inventors” means that said authors and inventors are given a limit. It’s not a limit if you change it after the authors and inventors are dead.

It actually is not even a limit if the clock starts clicking only once the author/inventor is dead.

“Limited” means that at the time the copyright is given, its expiration date is known. Limits don’t move. If they do that, they are not limits.

Anonymous Coward says:

Why is there not a statute of limitations on these claims and lawsuits?

Criminal laws have statutes of limitation(s). Civil laws have similar statutes whereby the courts will not honor any claim or hear any case after so much time has elapsed.

Even contract law has statutes of limitation(s), though you might not find it expressed in code. Courts usually do not enforce a contract that does not have a time limit or a definition of completion; many such contracts get declared unenforceable.

Bruce says:

There's a publication of the song from 1921

In the discovery materials provided by Warner, there’s a publication of the lyrics and melody in 1921, with an attribution of by permission of the Summy Corporation. I fail to understand why that doesn’t invalidate the original copyright since the copyright law of the era required copyight registration within a year of the initial publication.

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