Filmmakers Fighting “Happy Birthday” Copyright Find Their “Smoking Gun”

from ars technica

It’s been two years since filmmakers making a documentary about the song “Happy Birthday” filed a lawsuit claiming that the song shouldn’t be under copyright. Now, they have filed (PDF) what they say is “proverbial smoking-gun evidence” that should cause the judge to rule in their favor.

The “smoking gun” is a 1927 version of the “Happy Birthday” lyrics, predating Warner/Chappell’s 1935 copyright by eight years. That 1927 songbook, along with other versions located through the plaintiffs’ investigations, “conclusively prove that any copyright that may have existed for the song itself… expired decades ago.”

If the filmmakers’ lawyers are right, it could mean a quick route to victory in a lawsuit that’s been both slow-moving and closely watched by copyright reform advocates. Warner/Chappell has built a licensing empire based on “Happy Birthday,” which in 1996 was pulling in more than $2 million per year.

Plaintiff Jennifer Nelson’s movie is actually called Happy Birthday, and it’s about the song. She had to pay Warner/Chappell $1,500 to use the song in her movie, and that didn’t sit well with the documentarian. She’s seeking to get that money back and also represent a class of plaintiffs who have paid similar licensing fees to Warner/Chappell on a copyright she and her lawyers say is illegitimate.

The 1927 songbook referenced above was found in a batch of 500 documents provided by Warner/Chappell earlier this month. That cache included “approximately 200 pages of documents [Warner/Chappell] claim were ‘mistakenly’ not produced during discovery, which ended on July 11, 2014, more than one year earlier,” Nelson’s lawyers write.

The new filing comes as US District Judge George King was just two days away from holding a hearing about whether or not songwriter Patty Hill abandoned her rights to the lyrics. The plaintiffs say that the newly discovered songbook evidence is so strong that the copyright abandonment issue is moot.

“[T]he documents prove conclusively that the song is in the public domain, thus making it unnecessary for the Court to decide the scope or validity of the disputed copyrights, much less whether Patty Hill abandoned any copyright she may have had to the lyrics,” they write.

More here.

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13 Responses to Filmmakers Fighting “Happy Birthday” Copyright Find Their “Smoking Gun”

  1. Stephen Gallic September 18, 2015 at 11:15 am #

    This is one of the rather silly cases that I have read about in recent years as the Happy Birthday Song is used throughout the world every day thousands of times. Although it was a great idea to put a copyright on the song in order to make money it was rather sleazy and slimy for someone to take advantage like that. Having accrued 2 million per year in 1996, Warner/ Chappell has been milking this for far too long. Luckily, someone has come along and researched the topic and has found substantial evidence that will thwart the claim to the rights of the song and Warner/ Chappell will have to pay up. What angers me is why there would be a copyright on this song in the first place. For close to a hundred years this song has been sung to celebrate someone’s life. Why is it that someone feels the need to take advantage and “take credit” for a song that they did not make and one that is so profoundly utilized by the public.
    Luckily, it seems as the plaintiff has more than enough evidence to prove Warner/ Chappell no longer has copyright over the song. With counts of them withholding evidence as well and smudged lines it is more than evident that they are covering their ass. The laws of copyright have been established since 1909 and are a rather strong area of law. But with the ability to copyright in today’s world at everyone’s fingertips there are many cases of copyright that go unnoticed. Thus, copyright law is yet another area of law that may need to adapt to our ever evolving society.

    http://arstechnica.com/tech-policy/2015/07/filmmakers-fighting-happy-birthday-copyright-find-their-smoking-gun/

    • Daniel Kelly September 21, 2015 at 7:43 pm #

      While in some sense I understand your point about defending what is, in your mind, publicly owned property of the masses there is still the legal side of everything and this is a trend that exists in any media. We may feel that we, the people, own a property like “Star Wars” and in some ways we can. George Lucas was an example of a good corporate officer providing just enough of his work for public use while still being able to make money. But we must recognize that everything was made by someone and that person has the rights to make money for their creative output. However, I would absolutely agree that Warner is now just milking the product of another person’s hard work. What is wrong is that they have continued to use this for nearly a hundred years after its creation, much longer than copyrights were intended. The effects of this are mostly for companies and media but it can still hurt us, they have been milking it but that does not mean we should get rid of copyright altogether.

  2. Aaron Varghese September 18, 2015 at 4:01 pm #

    Before I read this article, I had no idea that the song, “Happy Birthday,” was in fact the subject of numerous controversy over copyright issues for so many years. I always considered it as a generic but catchy song that everyone uses on the occasion of someone’s birthday. Then after reading how many copyright issues have been raised because of this song, some new light was shed on the song. What for most is just a cute song sung to remember someone’s birthday is also a subject for financial income for the Warner/Chappell industry. The Warner Bros. had apparently gained copyrights to this song after songwriter, Patty Hill, copyrighted the lyrics in 1935. I had no idea the song even dated as far as the 1930’s. Since then, the Warner Bros. has apparently accumulated a total of about 2 million dollars per year for just leasing the license to the song to other parties. Now I find that a song that is so widely sung by not just America, but also by so many parts of the world, is subject to financial gain by a company. The Warner Bros. is a very well off company in the first place so I find it absolutely ridiculous that such a company clings on to the rights to a song that shouldn’t even belong in any singular power’s domain. The article then discussed the “smoking gun” evidence that helped resolve some of these copyright disputes. According to the article, there is proof of the “Happy Birthday” lyrics existing in 1927, over seven years before Patty Hill copyrighted the song. This evidence put serious debate as to whether the Warner Bros. had any right to the song. However this evidence was not even close as pressing as to the issue if the song should be considered public domain. In my opinion, a song that is so vastly used for such a long time period should not be subject to financial rewards to any party. The court ruled that documents helped conclude that the song was in fact a part of public domain. The plaintiff in this case wanted to entitle her documentary about the disputed song “Happy Birthday” and was subject to a fine of over a thousand dollars in order to do so. Backed by other parties subject to fines issued by the Warner Bros. the plaintiff was able to present her case before the court and provide hard evidence that Warner Bros. or any company should not have exclusive rights to the “happy birthday” song. Everyone I know in my family sings the song, “Happy Birthday” during someone’s birthday. This song is so widely used that common sense itself should put the song within the public domain even if Warner Bros. invented the song. And even then, “Happy Birthday” lyrics can’t compare to the length and depth of songs by contemporary artists like Drake and Katy Perry. Such individuals have solid arguments if someone were to utilize their song in their own work without the appropriate consent. However, a song whose origins are not even completely known and that was copyrighted about 80 years ago should not be subject to the same copyright laws. I am glad that the “smoking gun” evidence presented itself at the appropriate time because I believe that the “Happy Birthday” song belongs in the public domain. Who honestly wants to sing and record the Happy Birthday song at their kid’s birthday song and think about copyright issues? This song is meant to celebrate the birth of a loved one. The fact that a company has made millions of dollars just off of this song that they never invented is without a doubt, wrong.

  3. Ryan Skolnick September 18, 2015 at 8:06 pm #

    Movements in the copyright case concerning the song “Happy Birthday” might provide huge relief to filmmakers that wish to utilize the famous birthday tradition. Previously, the copyright was filed with Warner/Chappell in 1935. If the origins of this traditional song truly were copyrighted in 1935, then Warner/Chappell still owns the patent— and filmmakers and TV writers will continue to pay the fees for utilizing “their” song. If, however, the plaintiff in this case is correct, then Warner/Chappell will potentially owe millions to TV producers and movie directors for wrongfully collecting payment due to the nature of the copyright.

    The basis for this new motion in the lawsuit is that now there is a songbook that was discovered. This songbook dates back to 1927, which would mean that the copyright expired multiple decades ago— meaning many movie directors and TV hosts or producers paid for rights that Warner/Chappell no longer held. As Joe Hill, author of this article, writes, this newly discovered songbook would put the song into the public domain. This songbook created the need for more research to be done. Based on the new research, it was shown that the “Happy Birthday” song was first recorded in 1922, even earlier then the song book which was created in 1927.

    The article by Hill goes on to mention that the most important line— the line determining whether or not the song was copyrighted previous to 1935— was blurred to the point where it was illegible. This caused the lawyers to need to get the original copies of the information, which ended up not having the word “copyright” on the song; the word “copyright” was required to prove you intended to file for copyright. The article goes on to mention that there are multiple different safety nets to their argument: even if the judge rules against them that the songbook began in 1922, the copyright would end in 1949.Then, even if the judge believes the claim that the copyright was renewed within 1949, the final end date of the copyright would have been end of year in 1997.

    Quite personally I believe that Warner/Chappell will need to settle. It appears as if the case against them is too strong to even attempt to continue to settle in court. A settlement needs to occur to cut their losses. Unless new evidence is found that invalidates the multiple layers of arguments against Warner/Chappell, the song company does not have much of an argument left. The settlement, however, would not be favorable towards Warner/Chappell in any sense— the plaintiffs have such a strong case that all of the negotiation power lies within their case. As for their case in general, I personally did not know that the song, “Happy Birthday,” was copyrighted. Multiple television shows have utilized the traditional song, which made me believe that no one owned “Happy Birthday.” What is interesting, however, is that the copyright for “Happy Birthday” has been renewed multiple times to supposedly continue past 2015. It is also pretty intriguing that no one has challenged Warner/Chappell’s claim to the song in the past— it is now just becoming an issue. It will be interesting to see how this plays out— especially so everyone can sing “Happy Birthday” without the threat of being sued.

  4. Joseph Belli September 18, 2015 at 8:38 pm #

    Prior to reading this article, I always thought Happy Birthday was a simple, playful melody sung to show respect to someone during the celebration of their birthday. Who would have known that the song is constantly the basis for law suits? The case mentioned in the article discusses how the filmmakers that made a documentary about the song believe that it should not be protected by copyright policies. The plaintiff, Jennifer Nelson, was forced to pay over a thousand dollars to Warner Bros. in order to use the song in her movie. This case, while kind of ridiculous, is actually rather substantial in the amount being sued for. Nelson is not only suing for her individual monetary payment to use the song, but also a group of people who have also paid for use of the song, which her and her lawyers are confident is illegitimately copyrighted. The proof surrounding their argument dates back to a songbook from 1927 titled “Smoking Gun” which includes a version of ‘Happy Birthday’ that predates the copyrighted version coined by the Warner Bros. by 8 years without a copyright notice. It was proved that this version of the song, written by Patty Hill, was in the public domain. Even if the judge dismisses this fact and considers that it was copyrighted, the copyright would have expired in the mid 1900’s, with no proof of a renewal. A song as popular and simple as ‘Happy Birthday’ should not be owned or be available for profit by any party. The constant use of this song by everyone nationwide should have been enough to put the song in public domain, regardless of who wrote the song. In my opinion, it’s a very corrupt way of making money and a company like Warner Bros. that has seen such great success should not be making absurd amounts of money from it. A surprising fact that I learned from this article is how much money Warner Bros. pulls in from the song: approximately two million dollars per year. At first, it is hard to imagine that the song could possibly be worth so much, but then when you think about how the song is subtly included in so many movies, it makes sense. It is something so seemingly insignificant that it kind of goes over your head. It makes sense to me that the world’s top artists must copyright their material to protect their work, but a well-known, family friendly song like Happy Birthday should be available for use by anyone without having to worry about legal conflict or having to pay to use it. Although there is a lot of money at stake for Warner Bros., they might need to draw up a loss for this one, considering the amount of evidence that supports the plaintiff. This article actually made me realize that this is possibly the reason why major chain restaurants create their own birthday songs, preventing law suits. If the case does rule in favor of Nelson, maybe we will no longer have to deal with the cheesy and slightly irritating nature of these customized spinoffs of the happy birthday song.

  5. Daniel Kelly September 18, 2015 at 9:29 pm #

    Filmmakers fighting “Happy Birthday” copyright find their “smoking gun”
    American copyright law has confused me for many years and I imagine rightfully so because it has been made almost needlessly complex over the years in a manner that has stifled creativity from outsiders and caused some very poor decision making in recent years. The stranglehold on the “Happy birthday” song which has long been notoriously protected by its owners is a dangerous example of the defense of copyrighted material. What is essentially part of the American songbook and arguably culturally belongs to all Americans, at least this is what I assumed as a child, is owned by an executive who can and would prosecute me for its usage. While copyright songs protect creators and can often be used to prevent cheap knockoffs, the extended abuses and redefinition of the law to extend them has only led to vindictive prosecution and stifled growth. For example, if I were a small filmmaker with barely a thousand dollar budget I would be unable to afford the rights to the song and thus could potentially damage a crucial scene in which my main character watches the first birthday of his son while knowing that his agents of evil were busy ending the life of his father who was suffering through his last birthday. However unlikely it is that would become a filmmaker, the usage of the Birthday song would be absolutely critical to this masterwork. My new work of art would be actively stifled by the creative output of someone long dead and unable to collect the money which my contribution would help fund. All of copyright law is meant to protect the work as the creator is alive, it was extended to provide a little for their children but in essence, it was not made to protect corporations as far as I knew. The corporate entity which cannot be negotiated with nor has any care for the creative entity.

    Beyond just a lack of creative stifling, the complex ways in which copyright law have been constructed has forced some corporations to act in ways which they normally would not. Take for example Sony pictures which holds the rights to adaptations of the Spiderman films. After Sam Rami’s version of Spiderman died with his third film, the property was considered dead and could be remade if a director had an interesting idea for a new version or burned with desire to make a Spiderman film with a monkey playing the character Rhino. That director could turn to Sony who would in turn consider their idea and decide to fund it or allow them to pay for the rights of the character. However, because Sony was going to lose the rights to the character if they did not use it within a certain period of time without release, the company was forced by their own self-interest to make a movie. Instead of a creative figure initiating a project he had interest in, the corporation created a project which nobody wanted and, more likely than not, rushed the production to fit the schedule. Creating what is arguably not a very good film, made worse by the fact that it was not bad because someone simply had a poor vision or was not good enough to make it. They failed because it was never supposed to be made. I would not purport to have the answers in this matter, some radical method of fixing very difficult and often incomprehensible copyright laws but I will posit that the current system is overprotective and convoluted, neither protecting the rights of authors for the money they deserve while also forcing others to create when they do not want to instead of giving them the time create works of art respectful to the original. As for the loss of Warner, this is a good thing as it pushes back against one of the criticisms I have about copyright law. It removes the defense of a corporation making money off the back of a long dead creator for much longer than it should have done.

    Mullin, Joe. “Filmmakers Fighting “Happy Birthday” Copyright Find Their “smoking Gun”.” Web. 19 Sept. 2015.
    http://arstechnica.com/tech-policy/2015/07/filmmakers-fighting-happy-birthday-copyright-find-their-smoking-gun/

    Web. 19 Sept. 2015.
    http://www.rottentomatoes.com/m/the_amazing_spider_man_2/

  6. Marquise Moseley September 21, 2015 at 1:05 am #

    In the article, “Filmmakers Fighting ‘Happy Birthday’ copyright find their ‘Smoking Gun,’ seems to be a pretty relevant case argument. At first, I could not really see how this could be such a big case seeming as though everyone uses the Happy Birthday song/tune daily, but then I realized that is the exact problem. The fact that it is so commonly used can make the case way bigger than it should have been. In the article it is seen on about two or three different occasions where people found themselves in a lawsuit from using the song in a film or book.
    It seemed to be a legitimate case at first because there was a copyright placed on the song, but as the article progressed this idea was slowly destroyed. Yes, there was a copyright placed on the song, but according to the article to discredit that in court the defense would just have to state that the copyright would expire in the late 1940s if not renewed. If it was for some reason renewed then it would have also expired in the late 1990s worst case scenario. The case could never be resolved this easily because there is too much money on the line. Warner/Chappell has too much money that would need to be given back to allow the case to just be won that simply by the plaintiffs.
    Personally I believe that Warner/Chappell will most likely need to settle at some point. At the moment things are not looking very good for Warner/Chappell because there are so many different points that the plaintiffs can bring up, so instead of having to give back all of the money they might as well try to settle and keep most of the money. Worst case scenario even if they settle and still mange to give back a lot of money they can save themselves the other expenses they would have received from all of the courts. Although no one would want to settle in this case I feel as though it would probably be best for both sides, and that way both sides would get some money and at the same times save themselves from all of the legal costs they would acquire if they kept pushing for the suit.

  7. Edward Rebmann September 21, 2015 at 7:58 pm #

    I had always assumed that “Happy Birthday” was just another song in the public domain; in fact, it never even occurred to me that it might even be copyrighted. After reading this article I was surprised to find out that I was wrong. Warner/Chappell has had a copyright on “Happy Birthday” for 80 years and has been collecting royalties for that entire time. However, since 2013 Jennifer Nelson has been suing Warner/Chappell in order to prove that “Happy Birthday” is not and should not be copyrighted. Thanks to newly discovered documents Nelson now seems to have a good chance at winning and proving that “Happy Birthday” is not copyrighted music.
    Perhaps what is most interesting about the developments in this case is the fact that the most important line of text (“Special permission through courtesy of The Clayton F. Summy Co.”) just so happened to be the only line of text that was significantly blurred, which seems very suspicious. Given that this is a song that I have grown up singing and that has been a part of my life for as long as I can remember I would love to see it fall under the public domain so that anyone and everyone can use it just as I have. It will be interesting to see how Warner/Chappell tries to defend itself against this new evidence, which seems fairly solid. It remains to be seen how this case will turn out, but I believe that “Happy Birthday” is a song that should be shared by all and not owned by a single company for profit.

    Mullin, Joe. “Filmmakers Fighting “Happy Birthday” Copyright Find Their “smoking Gun”.” Arstechnica.com. Conde Nast, 27 July 2015. Web. 21 Sept. 2015. .

  8. Chris Gattuso September 25, 2015 at 12:54 pm #

    This case of “Happy Birthday” being copy righted by Warner/Chappell seem absolutely laughable and honestly seems like it would come out of an episode idea for a T.V. sitcom. When the copyright on this particular song was filed in 1935 and according to standford.edu if the song is published “between 1923 and 1978 the copyright is valid for 95 years”. So this would mean that Warner/Chappell’s copyright on the song would still be valid however according to the article the “smoking gun evidence” that was found was that Patty Hill wrote the lyrics to the song and gave them to the public years before the copyright was created and that the 1935 copyright only covered specific piano arrangements of the song.
    So over all most people’s reaction seem to be valid in that they believe Happy Birthday should be a public domain. Also in looking at this case from a musician stand point, personally, for course everyone wants to be adequately compensated for their work which is why copyright law was created to protect everyone’s intellectual property. However many musicians would agree that if there songs or lyrics were still being enjoyed and sung decades after the publication date they would have no problem making them public domain and most likely be flattered by the fact.

    “Copyright Basics FAQ.” Stanford Copyright and Fair Use Center Copyright Basics FAQ Comments. N.p., 27 Mar. 2013. Web. 25 Sept. 2015. .

  9. Isabel Goodman September 25, 2015 at 6:23 pm #

    Like many others who posted a comment on this article, I did not know the song “Happy Birthday” was copyrighted. In hindsight, I should have known because there must be a reason so many restaurants use their own birthday songs, when it would be so much easier to use the age-old, classic happy birthday tune. In addition, the song is not used all too often in movies and TV shows. The reason for this is the copyright. Warner/Chappell not only used “Happy Birthday” to build their licensing empire, they also make over two million dollars a year due to it. This two million comes from people like Jennifer Nelson that must pay to use the song in whatever they wish to produce. Jennifer Nelson feels it is not fair that she has to pay to use the song because the song predates the 1935 copyright by eight years. This evidence should be enough for copyright abandonment. If this happens, “Happy Birthday” will be up for the public to use as they wish and no money will be paid to Warner/Chappell in order to use it. This means the song could potentially surface in more movies, TV shows, and restaurants. While this seems like such a small case in the grand scheme of things, “Happy Birthday” is known by everyone and if it is not under copyright, more people will be able to use it and make birthday scenes more realistic. Also, a company who makes a lot of money from the song will no longer be making that money. The company Warner/Chappell has a lot to lose if “Happy Birthday” becomes public property. Though the case has not yet finished, the evidence presented does not leave the court much choice. The evidence shows that the copyright should not exist and it is only a matter of time before the court finds in Jennifer Nelson’s favor.

  10. Joseph Dilley September 26, 2015 at 11:24 am #

    Personally I has no idea that the song “Happy Birthday” was licensed. In all honesty it was a brilliant copyright by Warner and Chappell. Earning more than 2 million dollars a year for arguably one of the most famous songs in American history. Other than the National Anthem, Happy Birthday might be the most used song daily. Another aspect of the case that I found interesting was that each restaurant as their own respected version of Happy Birthday (Ingram, 2015). I was always curious as to why these restaurants had their own version, now I realize it is because of a copyright issue. These restaurants do not want to pay royalties.
    Federal court judge George King ruled in favor of the plaintiffs (Ingram, 2015). Stating that Warner and Chappell never had a valid copyright and that they cannot collect anymore licensing revenue from that song. I believe that the song should have never been copyrighted, however the business plan from Warner and Chappell to copyright this song was brilliant. Having the song copyrighted for around eighty years, Warner and Chappell must have generated over $50 million dollars of licensing revenue. Now that the song no longer has a valid copyright, I am curious as to how these restaurants with their own unique birthday song will change back to the original version of Happy Birthday.
    Source:
    http://fortune.com/2015/09/23/happy-birthday-copyright-2/

  11. SamiyahK October 2, 2015 at 4:37 pm #

    I find it interesting that the plaintiffs attorneys are insinuating the the defendant tampered with the evidence they turned over in discovery. The key element of this new discovery is the line of text stating that the song was included in the book, not under copyright but with permission from The Clayton F. Summy Co. The article mentions that crucial text was “blurred almost beyond legibility” and according to the plaintiffs lawyers, it was “the only line of the entire PDF that is blurred in that manner”. This indicates that the defendants may have purposefully smothered the evidence. It is not unusual for large companies to drown plaintiffs in discovery, providing an overwhelming amount of documents, so much so that the important elements may become a needle in a haystack. However, I am sure that purposefully blurring the text is illegal. That, along with the discovery of the actual text may significantly impact the outcome of the case.

    I think the iconic Happy Birthday song has run into similar problems to what BandAid, Kleenez, and Zerox faced in the past. While these brand names took on a generic meaning, Happy Birthday has taken a similarly general use to the public. This only supports the plaintiff’s argument that the song should be in the public domain.

  12. Matt Pitner November 15, 2015 at 4:33 pm #

    It is somewhat funny to think that the “Happy Birthday” song is copyrighted to begin with. Does that mean that everyone who has sang the song to me on my previous birthdays can be sued by Warner/Chappell? Hopefully, the answer to that question is no. Paying to use a song that is so widely known is a ridiculous idea to begin with, let alone it cost Nelson up to $1,500 to use the song in her documentary. The lawsuit that Nelson has started against Warner/Chappell has the potential to undo the copyright on the song and make it free to use.

    As stated at the beginning of the article, Nelson and her lawyers have “proverbial smoking-gun evidence” which has the potential to sway the judge in favor of Nelson’s case. This new evidence includes this statement, “[T]he documents prove conclusively that the song is in the public domain…” The documents in question here are part of a batch of 500 documents provided by Warner/Chappell that basically makes the whole lawsuit unnecessary. If the song belongs to the public domain, there should be no copyright on the lyrics to the song.

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