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Happy Birthday song copyright invalid, filmmakers allege

A documentary filmmaker making a movie about the ubiquitous Happy Birthday song says she has unearthed conclusive proof that a copyright claimed by a major music label either expired decades ago, or never existed in the first place.

Dispute over ubiquitous ditty may soon end in California courtroom, based on new evidence

Warner rakes in a reported $2 million every year from licensing the 'Happy Birthday' song, but new court documents suggest the company's claim to the rights to the ditty may be invalid. (Ted Anthony/ Associated Press)

A documentary filmmaker making a movie about the ubiquitous song Happy Birthday says she has unearthed conclusive proof that a copyright on the song claimed by a major music label either expired decades ago, or never existed in the first place.

According to court documents filed in a district court in California, production company Good Morning To You Productions Corp. has found the elusive smoking gun that would seemingly render a copyright claim long claimed by Warner Music invalid.

Documentary filmmaker Jennifer Nelson was making a movie about the song's origins that required her to pay $1,500 US to Warner Music for the rights to play the iconic tune in the movie.

That compelled her and her production company, Good Morning To You Productions Corp., to set about digging into the history of the claim. After doing some research, in 2013, she launched a lawsuit over the issue. In that process, the company discovered what they say the "smoking gun" against Warner's claims to own the rights to the song.

"The newly-discovered evidence that proves conclusively that Happy Birthday has been in the public domain since no later than 1922," the court document reads.

A little history

In 1927, Chicago music publisher The Cable Co. published the 15th edition of a children's song book entitled the Everyday Song Book. The 16th song in that compendium was a version of the melody for a song named Good Morning, with birthday themed lyrics that would now be recognizable to just about everyone.

The book credits the song to Mildred Hill for the melody and Patty Hill with the lyrics. Everyone agrees that the Hill sisters later assigned the rights to their songs to a publishing company owned by Clayton Summy.

But Warner's claim to the song is based on the contention that Summy never licensed the song to be used anywhere else. Warners's copyright is based on a version credited to writers Preston Ware Orem and Mrs. R.R. Forman dating back to 1935, almost a decade after the Hills seemingly wrote the ditty.

The version of the songbook unearthed by the filmmakers, however, shows the page with the Happy Birthday song on it in the 1922 book has the following line written in it: "Special permission through courtesy of The Clayton F. Summy Co." 

A copy of a 1927 book unearthed by filmmakers disputing the origins to the Happy Birthday song had been called a 'smoking gun' in the case. (Wolf Haldenstein Adler Freeman & Herz LLP)

An earlier version of the book, in 1922 contains the same song and permission phrase, suggesting there was no copyright claim on it then, either, the document says.

That suggests neither the Hills nor Summy ever formally filed for a copyright on the song, which under U.S. copyright law on the books at the time means it passes into public domain and is available for use by all. If a creative work from the time didn't have an explicit mention of there being a copyright, under the Copyright Act of 1909 the "published work was interjected irrevocably into the public domain," the lawsuits reads.

If the judge agrees with that argument in this case it means "any copyright that may have existed for the song itself (i.e., the setting of the Happy Birthday lyrics to the melody of Good Morning) expired decades ago," the document suggests.

Even if the judge decides a clear copyright on the song was in place, the copyright on the entire book expired in 1949 and there's little evidence it was renewed — another argument in the documentary filmmaker's favour, the court document argues.

It has been estimated that Warner takes in more than $2 million US every year from licensing the rights to the familiar tune.

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