Saturday, February 13, 2016

Happy Birthday Song Loses Copyright Protection

Here's an interesting development in a specific copyright situation;  the "Happy Birthday" song.

This song was written more than a century ago, and is the most recognizable song in the English language.

The melody from the song is based on a song called "Good Morning To All" which was written in 1893.  The first time that the lyrics appeared in print with that melody was in 1912, although there were no copyright notices attached to the melody and lyrics at the time.

In 1935, a US company called Summy was able to register the copyright on the song.  For the next 63 years, they collected royalties on public performances of the song, earning the company tens of millions of dollars.

In 1998, Warner Music purchased the copyright to the song, and started collecting royalties from that point forward.  As an example of the money that they collected, the rate to include the song in a film or documentary could be around $700 USD, although this could vary significantly.

Also in 1998, the Sonny Bono Copyright Term Extension Act was passed.  That had some major influence on copyright law, as anyone who has studied music copyright knows.  The Copyright Term Extension Act was somewhat contentious.  In short, it extended some copyright terms by a couple decades, although that's a gross over-simplification.

An American law professor (Robert Brauneis) did some research into Happy Birthday in the 2000's, and in 2010, he concluded that the song was probably not a legitimate copyright, even though Warner continued to enforce royalties.

In 2013, a class action lawsuit was filed against Warner to try to recover all royalties paid to Warner since 2009.  This past fall, the judge hearing the case ruled that Warner's copyright to the song was invalid for the lyrics and melody, and could only be upheld for a specific piano arrangement of the song.  Alternative arrangements would not be considered to fall within Warner's copyright claim.  However, the judge stopped short of declaring Happy Birthday to fall within the public domain.

Here's where things get interesting.  Warner announced at the start of this week that they would not contest the judge's ruling.  They also agreed proactively to a settlement of about fourteen million dollars to reimburse royalties dating back to 2009, and they also stipulated that the song should be placed in the public domain.  But why would they do this??

The answer is simple:  in return for this, they're avoiding going to trial, which would have run the risk that they could be published for having collected royalties for so many decades, in case the courts decided that the original copyright claim in 1935 was invalid.  If that had happened, Warner could have been responsible for paying much more than just fourteen million dollars.

The judge in the case will be signing off on the settlement in March, which should be mainly just a formality.  Once that happens, it will mark the close of an interesting prominent case in American music copyright law.

Here's a link to an article in the Hollywood Reporter with more information:

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