by Ted Johnson, Senior Editor, Variety.com
A federal judge ruled on Tuesday that the lyrics to “Happy Birthday to You” are not protected by copyright, concluding that Warner/Chappell Music does not hold a valid claim to the song.
It raises the prospect that royalties will no longer be collected from public performances of the song in movies, TV shows and other productions.
The decision by U.S. District Judge George H. King is a victory for a filmmaker, Jennifer Nelson, making a documentary about the history of the song, who along with other plaintiffs challenged the the music publisher’s claim to the lyrics, allowing them to collect royalties for years.
King wrote that Summy Co. never acquired the rights to the lyrics in 1935, and as successor in interest to that publisher, Warner/Chappell “does not own a valid copyright.”
By some estimates, the publisher collected up to $2 million a year in royalties from the song.
Mark Rifkin, attorney for the plaintiffs, said that the decision means that the song is in the public domain. “There is no one, really, who can claim an ownership to the song,” he said.
A spokesman for Warner/Chappell said in a statement, “We are looking at the court’s lengthy opinion and considering our options.”
That “Happy Birthday” — one of the most sung songs in the world — was still under copyright protection at all comes as a surprise to many people.
The origin of “Happy Birthday to You” is traced to to a 1893 manuscript for sheet music that included the song “Good Morning to All,” which was written by Mildred J. Hill and her sister, Patty Smith Hill. The song was first published in 1893 in “Song Stories for Kindergarten,” and later the lyrics to “Happy Birthday” were adapted to the song’s melody.
King wrote that the record “shows that there are triable issues of fact as to whether Patty wrote the ‘Happy Birthday’ lyrics in the late nineteenth century and whether Mildred may have a shared interest in them as a co-author.” But “even assuming this is so, neither Patty nor Mildred nor Jessica ever did anything with their common law rights in the lyrics.”
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