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Ever wonder why restaurants sing their own versions of “Happy Birthday” or why you rarely see “Happy Birthday” sung by characters in a movie or TV series? The reason: they could be fined $150,000 for unauthorized use of the song . . . at least, that is what Warner Music Group warned Good Morning to You Productions (GMYP) for the use of “Happy Birthday” in GMYP’s documentary premised on the song’s history.
To avoid Warner’s claim of copyright infringement and $150,000 fine, GMYP paid a license fee of $1,500. Mind you, the song has only 16 words (one of which is reserved for the person’s name) and takes less than 30 seconds to sing. Unhappy, the documentary’s filmmaker brought suit against Warner/Chappel Music Group alleging that Warner “wrongfully and unlawfully” claimed copyright to the song itself and enforced infringement violations.
Since Warner purchased the copyright to “Happy Birthday” in 1998, it has brought in over $2 million a year in licensing fees and copyright infringement fines. Though the song has been profitable for the past decade, the outcome of this lawsuit could have far-reaching legal and financial consequences for Warner and the copyright community. A finding that the song has entered the public domain would set legal precedent and perhaps even establish a model for future challenges to copyright claims. And if GMYP has a say in it, it would also mean that Warner would have to repay the licensing fees and fines it collected.
This will not be an easy case. This is not the first time questions have arisen about whether or not the copyright to “Happy Birthday” has expired. Rather, “Happy Birthday” has quite a dubious copyright history. The song was first published in 1893 under the title “Good Morning to All” and was allegedly written by the Hill sisters. However, another set of “Happy Birthday” lyrics were published in 1924, followed by a piano arrangement in 1935. Under the current copyright regime, works published before 1923 have copyright protection for up to 95 years. This 95 years of protection is what Warner claims as justification for its enforcement of copyright infringement of the public performance of the song. However, there is a question as to what specific copyright Warner holds: the lyrics, the song, or the underlying piano arrangement.
A copyright holder is entitled to certain exclusive rights: the reproduction right, the adaptation right, the public performance right, the distribution right, and the public display right. Title 17 § 106 of the Copyright Act gives copyright holders the exclusive right to publicly perform musical compositions. Section 101 of the Act defines public performance as “to perform or display [work] at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances gathered.” So for the “Happy Birthday” enthusiasts reading this, singing “Happy Birthday” at a birthday party in your home will at least not constitute a public performance.
Given the numerous amendments to the Copyright Act, and the complexities of determining a copyright’s duration for pre-1920 works, this lawsuit comes at a perfect time because it is forcing a legal discussion on the issues of the current state of copyright law in the United States. Advocates for reforming the Copyright Act are enthusiastic, hoping that this lawsuit will result in clearer rules. But are they too hopeful? Will the judges actually rule, or will leave it to Congress to make any changes, even for clarity’s sake? Although the case is in its early stages, it will definitely be setting a new trend as the redefined Birthday suit.
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