Blowing out the Candles on “Happy Birthday”September 25, 2015
Earlier this week, Judge George H. King of the Central District of California closed the books on Warner/Chappell Music’s claim to own the copyright in “Happy Birthday to You” – a work dubbed “the world’s most popular song.” In a 43 page ruling that was equal parts advanced civil procedure and object lesson in interpreting archival records, Judge King toured the long history of “Happy Birthday to You” (and its melodic forebear, “Good Morning to All”) before ruling that Warner/Chappell had failed to show that they owned any rights in the lyrics.
To the outside observer, this must come as a stunning bit of news. If Warner/Chappell never acquired any rights, how were they able to get away with extracting licensing fees, estimated to be around $2 million a year, for decades? The answer lies in a tangle created by policy decisions around copyright law, and the realities of trying to untangle them.
First, a backgrounder on the song itself. Sisters Mildred and Patty Hill are generally credited as the authors of “Happy Birthday,” which began life as a song for school children titled “Good Morning to All.” “Good Morning to All” was published in 1893, and the copyright to its melody and lyrics expired in 1949 after the lapse of its 56 year term. As for “Happy Birthday,” the first known publication of its complete lyrics occurred in 1911, in a songbook that didn’t identify an author. In 1935, the Clayton F. Summy Company, a music publisher with whom the Hill sisters had worked before, registered a copyright in an “[a]rrangement as easy piano solo, with text” for the song “Happy Birthday to You.”
Warner/Chappell hung its claim of ownership to the lyrics of “Happy Birthday” on this registration (Warner/Chappell purchased the Summy Company’s successor in 1988). There are two related points of copyright underlying this claim. First, prior to the overhaul of the Copyright Act in 1976, the term of copyright protection typically began with the first authorized publication of a work (as opposed to when the work was created). Second, a 1935 publication date keeps a work under copyright until 2030, thanks to copyright term extensions granted by Congress to most works published after 1923. Tying these two points together, Warner/Chappell argued that the Hill sisters wrote the lyrics of “Happy Birthday” before the turn of the century, but never authorized their publication, or enforced their rights in the lyrics against users of “Happy Birthday” for almost forty years, at which point they transferred their rights to the Summy Company, which finally registered them in 1935. Therefore, Warner/Chappell argued, it possessed rights in the lyrics lasting until 2030.
The court didn’t buy it.
Judge King found that nothing in the record suggested that the Hill sisters ever transferred the rights to the lyrics of “Happy Birthday” (assuming they wrote it and hadn’t abandoned or otherwise lost the rights in it), to the Summy Company (on whose purchase Warner/Chappell bases its claim). Rather, the second-hand evidence of various transfers of rights between the Hill sisters and the Summy Company offered up by Warner/Chappell involved only “various piano arrangements” of “Good Morning to All”/“Happy Birthday.” Judge King also cast doubt on the likelihood that the 1935 registration touted by Warner/Chappell covered lyrics written by the Hill sisters (if they covered lyrics at all), given that it listed “Preston Ware Orem” as the author of the registered work.
Because these findings effectively resolved the dispute before him (whether Warner/Chappell had an enforceable right against the plaintiff documentarians), Judge King did not reach a conclusion on a number of other questions that would have settled whether “Happy Birthday” is in the public domain (e.g., whether the Hill sisters are the true authors, whether the Hill sisters abandoned their copyrights by failure to act while others published the lyrics, or whether the Hill sisters had divested their rights by approving a publication without registering their rights). Instead, the opinion stops just short of that conclusion.
If we accept Judge King’s findings, then at a minimum it means that Warner/Chappell has benefitted to the tune of millions of dollars over the last 27 years on the basis of non-existent rights. There’s a good chance that this isn’t the only case of uncertainty in ownership rights resulting in a situation where those bold enough to claim ownership can safely reap a windfall. The phenomenon of audacious music publishers engaging in acts of public domain homesteading, like claiming ownership and authorship of folk songs, is well documented — for example, in this Rolling Stone account of how an American songwriter falsely claiming to the Copyright Office that he, and not a Zulu tribesman, had composed “Wimoweh” (“The Lion Sleeps Tonight”).
This problem has been compounded by Congress’s decision to extend the term of copyright protection twice in the last 40 years. As copyright terms last longer and longer, the records and witnesses that can definitively answer questions of ownership and authorship are being lost to time. In the case of “Happy Birthday,” the decision turned on the contents of a contract from 1934. Critically, no original copies of the contract remain, and Judge King was left to rely on descriptions of the contract in court filings from a 1942 lawsuit between the Hill sisters and the Summy Company on issues unrelated to the lyrics. There is something telling that the judge had to call on the “ancient records” exception to the hearsay rule in order to even admit the court filings as evidence.
The difficulty is that not every piece of culture from the early 20th century has been, or can be, subjected to the kind of scrutiny afforded to “Wimoweh,” as above, or to “Happy Birthday,” as in this 2009 research paper by Prof. Robert Brauneis, whose meticulous study doubtlessly paved the way for the challenge in this case. The truth is that deep investigative research is expensive. And even thorough research might miss things. A critical piece of evidence in this case, a 1922 publication of “Happy Birthday” that may have been authorized by the Hill sisters, was only discovered in the University of Pittsburgh Archives this July, after the motion which Judge King ultimately decided this week had already been submitted. (Judge King agreed to take the new evidence into consideration during his deliberation on the motion.)
Consider the position of a potential user of a work in which a large corporation makes a tenuous claim of copyright ownership. Faced with the option of either paying for a license, or undertaking expensive litigation, which is more likely? Consider further that if a use is found to be infringing, the user may be liable for statutory damages ranging up to $150,000 per use. For most, the risks and costs just aren’t worth it.
While this decision is terribly unfortunate for Warner/Chappell, which stands to lose $2 million a year in licensing fees for a song it apparently holds no rights in, it’s also an indictment of our copyright system, whose incentives are aligned to permit decades of unjust enrichment at the public’s expense.
There is a way forward though. At Public Knowledge, we believe in a copyright system that strikes the appropriate balance between incentivizing and rewarding creativity, and the public’s right to access and benefit from the creation of culture and knowledge. This decision highlights a system in need of reform.
The first step in addressing the problems highlighted by this case lies in reforming the current length of copyright terms. As Register of Copyrights Maria Pallante put it in 2013, “Perhaps the next great copyright act… could shift the burden to the copyright owner, [who] would have to assert continued interest in exploiting the work by registering with the Copyright Office, [otherwise] the works enter the public domain.” This proposal would shorten the length of some works, while also refreshing the recordkeeping of the oldest works.
The second step in tackling this problem involves reforming statutory damages. Current copyright term length means parties often rely on ancient records to establish ownership facts, while high statutory damages discourage users from challenging copyright claims. Groups like CCIA have offered a number of sound proposals, but here’s another solution that could help. Congress could require rightsholders to pay regular fees to maintain their registrations if they want the option of statutory damages. Like the term proposal, this would help improve the recordkeeping around rights, and decrease the uncertainty which allow situations like that surrounding “Happy Birthday” to develop.
Congress is currently discussing proposals on modernizing the Copyright Office. It should pay close attention to the lessons of “Happy Birthday” and take this opportunity to enhance the Copyright Office’s role in not just providing certainty and clarity to rightsholders, but also protecting the public domain. It’s a shame we’ve had to wait this long to celebrate “Happy Birthday” — let’s hope we’re not left holding our breath for real reform.
Image credit: Flickr user Omer Wazir. This article has been edited for clarification.