Happy Birthday Copyright Lawsuit

When it comes to copyright law you can never be too careful and some major corporations are now learning that the hard way. A Federal Judge in Los Angeles recently declared that the copyright claim to "Happy Birthday to You" was invalid and now Warner/Chappell, the company who claimed the rights to the lyrics, may have to pay back decades of royalties paid for the licensing use of the lyrics as the suit is now a class-action lawsuit. They will have to pay back all the fees from at least 1988 which is when Warner Music bought Birch Tree Group, who supposedly owned the rights at that point, but they may have to pay back fees from all the back to 1935. To better understand everything it's best to look at the history of the song.

The original melody was written in 1893 by sisters Mildred J. Hill and Patty Smith Hill and was called "Good Morning to All". The sisters eventually cut a publishing deal with Clayton F Summy Co. and released a songbook called "Song Stories for the Kindergarten" which included the song. Clayton F Summy Co. filed a copyright in 1935 but this is where the dispute begins. Warner Music claims that this 1935 copyright included the lyrics to "Happy Birthday to You" but the judge ruled that the 1935 copyright was only for the melody, which has already been in public domain for decades. The judge said that it isn't clear whether the sisters actually wrote the lyrics for "Happy Birthday to You" but it is certain they never filed a copyright claim to the lyrics. Even more, the judge ruled that there is no evidence that Clayton F Summy Co. ever obtained the rights to lyrics from whomever wrote them.

What's really interesting is this doesn't officially put the lyrics in public domain. If someone were able to prove they owned the rights to the lyrics, which is very unlikely, or descendants of the Hill sisters came forward with more information then they would have a copyright claim to the song and could stand to gain a lot of money. Quite unfortunately for Warner/Chappell they will end up paying the most for this as they make millions a year from royalties from the song. Warner/Chappell also give one-third of the profits from licensing the song to the Association of Childhood Education International, a designated charity of the Hill family. In 2012 the charity's tax return showed it received $754,108 in royalties. Plaintiffs coming forward are claiming Warner charged them from $1500 to $5000 per use of the song.

The lawsuit came about when documentary filmmaker Jennifer Nelson was working on a film about the origins of the song and was told she would have to pay Warner $1500 to use the song in the film. Nelson filed a putative class action suit in federal court for the Southern District of New York against Warner/Chappell. A week later a similar case was filed against Warner in California and Nelson eventually decided to refile her suit in California as well. Through her extensive knowledge and research about the history of the song Nelson and her attorneys proved that Warner held no copyright claim. A 1922 songbook published by the Hill sisters had a version of "Good Morning and Happy Birthday" with a line right under the title saying "Special permission through courtesy of The Clayton F Summy Co" which proves that the Hill sisters didn't own the rights to the lyrics and that they were published without a valid copyright because there was no copyright filed for the lyrics. Now Nelson's lawyers and producers of the film are working to file a class-action lawsuit that could cost Warner an estimated $50 million and unless a new copyright holder is declared the lyrics will become part of public domain and could be used by anyone without having to pay any license fees. 

Songwriters Equity Act 2015

On March of this year multiple Senators and Representatives Reintroduced H.R. 1283 and S. 662, which is also known as the Songwriters Equity Act (S.E.A.). This legislation was originally introduced in 2014 but has found backing from members of both sides of the aisle. What the bills essentially do is require the Copyright Royalty Board Judges to establish rates and terms that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and seller, when setting royalty rates under the compulsory license available for the reproduction and distribution of musical works (a.k.a "mechanical license"). When they are establishing such rates the judges must base their decisions on the current marketplace and economics  as well as information presented by the participants.

What this means for songwriters is that the courts must establish digital performance rates based on fair market values, something songwriters have been trying to fight against since the digital age has affected the music industry. ASCAP even released a video (embedded below) and hashtag #StandWithSongwriters that emphasizes how one million streams earns a songwriter only $90.

Some people believe this bill doesn't go far enough and we really need to get rid of the Credit Royalty Board altogether to allow for a free marketplace. In 2012 a D.C. Circuit Court even found the 3-judge panel to be considered Unconstitutional, with the Senior Judge's opinion stating;

"Intercollegiate Broadcasting, Inc. appeals a final determination of the Copyright Royalty Judges (“CRJs” or “Judges”) setting the default royalty rates and terms applicable to internet-based “webcasting” of digitally recorded music. We find we need not address Intercollegiate’s argument that Congress’s grant of power to the CRJs is void because the provision for judicial review gives us legislative or administrative powers that may not be vested in an Article III court. But we agree with Intercollegiate that the position of the CRJs, as currently constituted, violates the Appointments Clause, U.S. Const., art. II, § 2, cl. 2. To remedy the violation, we follow the Supreme Court’s approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 130 S. Ct. 3138 (2010), by invalidating and severing the restrictions on the Librarian of Congress’s ability to remove the CRJs. With such removal power in the Librarian’s hands, we are confident that the Judges are “inferior” rather than “principal” officers, and that no constitutional problem remains. Because of the Appointments Clause violation at the time of decision, we vacate and remand the determination challenged here; accordingly we need not reach Intercollegiate’s arguments regarding the merits of the rates and terms set in that determination."

The future of the music industry, streaming services, and intellectual property rights as a whole is still hard to determine as newer technologies keep changing the intellectual property landscape. One thing is certain, change is bound to happen soon.