September 24th, 2015

A Reason to Celebrate; Copyright Registration on “Happy Birthday” Song Invalidated

A federal judge in LA handed down a ruling this week that any exclusive rights to the song pertained only to specific piano arrangements of the tune – not the song or lyrics.  The copyright, currently held by Warner/Chappell Music, an affiliate of Warner Music, formerly owned by Time Warner, relied on a tenuous copyright claim dating back to 1935.  This claim gave Warner/Chappel the right to charge royalties for any use that was deemed a public performance of the song, which included any use in movies and TV shows, when sung for the benefit of a patron by a begrudging wait-staff at restaurants, and even when sung by Congress to President Reagan after his State of the Union Address in 1988.  (Legal action was allegedly considered by the predecessor owner of the copyright, The Birch Tree Group.)

The suit was brought by film-makers who had paid thousands of dollars for various uses in movies and documentaries.  It was estimated during the litigation that third-parties paid around $2,000,000 a year in royalties to Warner/Chappell for use of the song.  The tangled web of revisions to US copyright law and changing versions of the song from the genesis of the melody as the song entitled “Good Morning to All” in 1893 to the present day make it virtually impossible to know the extent to which the song is in the public domain.  However, this ruling eradicates the one practical way of enforcing the copyright and destroys the final barrier to the vital freedoms we craved for decades.  Go forth and sing “Happy Birthday” in public places!  Celebrate your special day with a one-candled slice of cake and a song at your local eatery!  You can even share videos of babies dancing to Happy Birthday, without fear or guilt.

Jack F. Gross is a partner in the firm’s Business, Media &

Publishing and Real Estate practice groups. Jack’s advertising law practice includes working with publishers, advertisers, and advertising agencies on advertising contracts, review of promotional material and consideration of intellectual property concerns for advertisements in all media.

Nicole J. O’Hara, a member of the firm’s Business Services Group, has specific experience with intellectual property law.  She works with businesses large and small, advancing and managing patent portfolios, drafting patent applications, and resolving trademark, copyright, trade secret, and patent-related issues.  Nicole also negotiates contracts for the commercialization of intellectual property including licenses, confidentiality, material transfer, inter-institutional, service, and research contracts.

The content found in this resource is for informational reference use only and is not considered legal advice. Laws at all levels of government change frequently and the information found here may be or become outdated. It is recommended to consult your attorney for the most up-to-date information regarding current laws and legal matters.