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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