A “Happy Birthday” for All?

After 80 years, Chief Judge George H. King of the Central District of California has effectively released the lyrics to the song “Happy Birthday to You” into the public domain. The case was brought by Rupa Marya, a leader of an alternative band who recorded their arrangement of “Happy Birthday to You” at an April 2013 live performance in San Francisco, CA. After its performance, the band was subsequently slapped with a $455 mechanical license fee for using the song. Defendant, Warner/Chappell Music, is a multinational music publisher that administers copyrights on behalf of major artists like Beyoncé and Eric Clapton.

Two issues were central to Judge King’s decision, the first procedural and the second substantive. Typically, a certificate of registration from the U.S. Copyright Office entitles the holder to a presumption of copyright validity in a dispute over ownership. However, in this case the certificate of registration bore the name of what the defense argued was an erroneous author, which was sufficient for the court to negate the copyright’s presumption of validity. Without that presumption, the plaintiffs introduced evidence calling into question the purported transfer of the copyright from the authors’ heir to the predecessor of Warner/Chappell Music, Summy Co. The defense argued that the transfer occurred in one of three agreements between the family and Summy Co.; however, the only agreement that could have transferred the rights to “Happy Birthday” dealt solely with piano arrangements. It seemed doubtful that a copyright in lyrics would have been transferred because, “pianos do not sing.” Since Summy Co. didn’t own the lyrics to “Happy Birthday,” it seemed unlikely that anyone else does.

Not everyone was happy with Judge King’s decision. Jay Rosenthal of Mitchell Silberberg & Knupp LLP, Washington, who is general council to the National Music Publishers Association, is quoted by Bloomberg as finding “a clear political undertone to the case.” He explained that copyright holders, post-Bern Convention, are not supposed to “inadvertently or mistakenly lose their copyright protection” by courts’ “engaging in an undisciplined and incomplete analysis of old contracts, old cases, and old law” as had occurred in this case.

The strategy for Marya going forward is to seek restitution under a theory of unjust enrichment for past royalties collected by Warner/Chappell for use of the song’s lyrics.