New documents in ‘Happy Birthday’ copyright lawsuit may spell the end of intellectual property protection for famous tune

by John Chapman

Film and television producers may soon be able to use the famous song “Happy Birthday To You” free of charge in movies and TV shows thanks to documents uncovered in an intellectual property class action lawsuit. Documentary filmmaker Jennifer Nelson filed a lawsuit against Warner/Chappell Music, a subsidiary of Warner Music Group, alleging that “Happy Birthday”—which the company claimed to hold the copyright for—was actually in the public domain and should be freely available to producers.

“Happy Birthday” is probably the most performed song of all-time, according to the Songwriters Hall of Fame. However, despite its ubiquity, the song is heard much less frequently in films and TV shows because of Warner/Chappell’s copyright claim over the tune. For years, the company has collected millions of dollars annually in licensing fees from producers who wanted to use “Happy Birthday” in films or shows, even though most copyright experts agreed that the song was probably in the public domain. However, due to the prohibitive costs that would be involved in filing a copyright claim against the company, Warner/Chappell was able to continue collecting royalties on the song.

In 2013, documentary filmmaker Jennifer Nelson produced a documentary about the history of copyright battles over “Happy Birthday”. Nelson was told by Warner/Chappell that she would have to pay $1,500 in order to include footage of people singing “Happy Birthday” in her movie. After investigating Warner/Chappell’s copyright claims for the famous tune—which Nelson described as “sketchy”—the filmmaker decided that instead of paying, she would sue, and filed a class action copyright lawsuit in California district court.

Nelson and her attorneys in the case argued that the two writers of “Happy Birthday”, Patty Smith Hill and Mildred Hill, had “surrendered the copyright to the public” prior to the song’s copyright registration in 1935.  As a result, they claimed, ‘Happy Birthday’ should no longer enjoy copyright protection in the U.S. because it entered the public domain prior to a 1923 change in American copyright law. Warner/Chappell argued that because the song was never formally published before 1923, the 1935 copyright filing was still valid, meaning that “Happy Birthday” is still a protected work.

After Nelson and Warner/Chappell rested their cases this summer, a judge was preparing to issue a ruling in the case when more than 500 pages of new documents in the case came to light. The documents—which Warner/Chappell claimed it had mistakenly failed to produce during the discovery process—included a page with words and music for “Happy Birthday” from a 1927 book that the plaintiffs had never seen before. After some additional investigation, a law librarian working for the plaintiffs was able to uncover a 1922 version of the song that was printed without a copyright claim for the song and pre-dating Warner/Chappell’s 1935 copyright claim by 13 years. Nelson and her attorneys called the discovery “a proverbial smoking-gun” which “proves conclusively that there is no copyright to the Happy Birthday lyrics.”

Based on this new evidence, Nelson’s attorneys filed a motion for summary judgement in the case, asking the judge to declare Warner/Chappell’s copyright claims invalid and declare that “Happy Birthday” is in the public domain. The judge is set to rule on the motion soon, meaning that Nelson’s two year legal odyssey could be nearing a close.

Heygood, Orr & Pearson and Intellectual Property Litigation

As the “Happy Birthday” copyright lawsuit shows, intellectual property litigation can be a complex process that requires expert legal counsel. The attorneys at Heygood, Orr & Pearson have handled hundreds of commercial litigation cases involving alleged damages ranging from tens of thousands of dollars to tens of millions. Our law firm has successfully represented businesses of all sizes, from small “mom and pop” businesses to some of the largest corporations in the world.

Our ability to successful handle intellectual property cases is aided by the extensive trial experience possessed by our attorneys. Although technical knowledge and familiarity with laws regarding intellectual property is essential for attorneys handling these claims, there is no substitute for courtroom experience. The seasoned litigators at Heygood, Orr & Pearson have the track record to take on even the most complex cases and explain them in terms a jury can understand.

Heygood, Orr & Pearson has handled numerous patent matters including prosecuting claims for infringement, as well as for interfered-with patent rights. We have handled claims brought by a large company for infringement of its rail car patent, claims by a local inventor for infringement of her patent for a childcare product, and claims by an Israeli company against a Fortune 500 company for infringement of its wireless technology patent.

Our firm has also represented a client suing a large American pharmaceutical company for interfering with its patent rights to liposome technology. Right now, our attorneys are representing an international businessman in a trademark infringement lawsuit relating to the diamond and jewelry business.

If you or your company requires legal representation in a copyright or intellectual property matter, contact our law firm for a free consultation by calling toll-free at 1-877-446-9001. You can also reach us by following this link to our free case evaluation form and answering a few simple questions about your case.