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.