Pitt library songbook key to lawsuit over ‘Happy Birthday’ rights
July 30, 2015 12:00 AM
A 1927 version of "The Everyday Song Book", part of the University of Pittsburgh's Special Collections, is the "smoking-gun" evidence that the 1893 ditty "Happy Birthday to You" should be free for public use and not subject to copyright restrictions, lawyers say.
By Luke Nozicka / Pittsburgh Post-Gazette
“Happy Birthday to You,” one of the most recognized songs in the world, has long been a cash cow for a company that charges for use of the 1893 ditty. A songbook found by Pitt librarians is likely to end the dispute over whether it should be copyright protected, lawyers say.
Warner/Chappell, a division of the Warner Music Group, says it owns the copyright to the song, allowing it to charge anyone who wants to sing or play “Happy Birthday to You” as part of a profit-making enterprise. This most often occurs with stage productions, on TV, in movies, in ringtones or in greeting cards. But even those who want to sing it publicly as part of a business, such as restaurant owners giving out free birthday cake, technically have to pay for permission to use the song.
Warner makes an estimated $2 million a year in licensing fees from the song, according to the New York Times.
After Warner asked filmmaker Jennifer Nelson to pay $1,500 to use the song in “Happy Birthday,” her documentary about the history of the tune, her New York-based Good Morning to You Productions filed a class-action suit in 2013 arguing that the song is free for all to use.
In Los Angeles on Wednesday, U.S. District Judge George H. King heard arguments on the case, which will come down to whether Warner can continue charging for the use of the song.
The song, written by Kentucky sisters Mildred J. Hill and Patty Smith Hill for their kindergarten students, started out as “Good Morning to All” and eventually evolved into “Happy Birthday to You.”
Warner attorneys argued in an eight-page court document filed Tuesday that Jessica Hill, who had inherited part of Mildred Hill’s rights to the song, renewed the copyright to “Good Morning” in 1921, and that the “Happy Birthday to You” song was copyrighted by Clayton F. Summy Co. with authorization from the family in 1935. Summy renewed the copyright in 1962, long before Warner Music bought Summy’s successor company, Birch Tree Group, in 1988.
Warner has pressed its copyright claim since that purchase.
The Good Morning group insists the 1935 copyright applies only to new piano arrangements written by Summy’s company, not to the lyrics of the song.
The plaintiffs argued in a court filing this week that the copyright for the song expired when both versions of the song were published in the 1922 “Everyday Song Book.”
Betsy Manifold and Mark Rifkin, attorneys for the plaintiff, found a “blurry version” of the 15th edition of “The Everyday Song Book,” which contains “Happy Birthday” lyrics published in 1927. They began looking for a cleaner version to prove the song is free of copyright protection, according to the Hollywood Reporter, which first reported the lawsuit.
On July 21, Mike Madison, faculty director of Pitt Law’s Innovation Practice Institute, received an email from Mr. Rifkin asking if a law student could send him copies of a 1916 version of the book located in Pitt’s Center for American Music. But Jeanann Haas, head of Special Collections at University Library System, said no “Happy Birthday” lyrics were found in it.
However, the lyrics are in the 220-page 1927 version, a 12th edition, located at Hillman Library in Pitt’s Special Collections Department. Librarians there faxed a copied version of song 16 in the book published by The Cable Company in Chicago, titled “Good Morning and Birthday Song” to the attorney, which was used as evidence at the hearing Wednesday.
The attorneys said the Pitt songbook was the “smoking gun” evidence that would prove once and for all that the song is not copyrighted.
The judge said at the start that he would not immediately rule on a plaintiff’s motion asking him to declare that the song — which the Guinness Book of World Records considers the most recognized song in the English language — is in the public domain and no longer subject to licensing fees. He’s giving Warner Music seven days to respond.
Marc Silverman, interim director of the University of Pittsburgh’s Barco Law Library, said although Warner/Chappell will most likely appeal if it loses at the trial level, this book will finally end the decades-long dispute over the tune.
“Unless there are some hidden documents that are waiting to be discovered, I don’t think, even at the appellate level, that they’re going to win,” he said of Warner/Chappell. “It may take a few more years, but I think this will be the end of it.”
Mr. Silverman said because the song was published in “The Everyday Song Book” without notice of copyright, it should be free to use.
“If you publish something, without the copyright notice, which is the ‘C’ in a little circle... it automatically [goes] into the public domain,” he said of the law at the time..
Regardless of how the judge rules, Mr. Silverman said it is almost funny how much attention Pitt is getting from this, considering all they really did “was copy a couple pages and fax them off.”
“We pull rabbits out of the hat day in and day out,” Mr. Silverman said. “We fax a couple pages to an attorney... and all of a sudden, the whole world is coming to our doorstep and saying, ‘Man, the librarians are really great.’ ”
The Los Angeles Times contributed to this report. Luke Nozicka: email@example.com, 412-263-1719 or on Twitter @lukenozicka.
Editor’s note, July 30: An earlier version of the article misidentified the location of a 1916 version of the book. The 1916 version of the songbook was located within the Center for American Music, not the Theodore M. Finney Music Library.
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