Happy Birthday, Dear Children: Once Again, to the Courts!

So in September, I wrote about the latest twist in the copyright ownership or existence in the lyrics for "Happy Birthday." Warner-Chappell had been the current and sole party alleging that it had license to the lyrics through a series of sales of same over the years. In a summary judgement, however, those rights were wiped away. A judge said that the evidence made it clear that there was no valid transfer of copyright in the 1930s from the Hill sisters to Summy Co., which was the ostensible owner. He walked through the potential that no valid copyright existed at all in the lyrics, but didn't formally issue a decision, because it was necessary.

At the time, this was trumpeted as the song finally being deemed in the public domain—but I argued while it was likely, it wasn't certain. That was because even should Warner-Chappell give up its fight (it hasn't) or lose on appeals, potentially all the way to the Supreme Court, there might be other valid parties extant who could establish a right. At which point, more litigation would be necessary to determine whether a) that party had a right in the work and b) the work had a valid copyright from around 1935. (Remember the musical tune was devised in the 1870s, copyrighted in the 1880s, and is clearly out of copyright for decades now.)

I wrote:

The only likely group that has standing to pursue legal action if they demanded royalties and didn't receive them is the charity that became the ultimate beneficiary of the Hills, the Association for Childhood Education International (ACEI). It has received a third of royalties collected by Warner-Chappell for decades, or roughly $750,000 a year in recent years. Should ACEI choose to attempt to enforce rights, sue Warner-Chappell, or carry out any other action, it has just two bases on which it could proceed. (Diane Whitehead, the executive director of ACEI, says, "We are not commenting at this time.")

Well—the ACEI is pursuing this argument now. I was unable to determine (nor were other reporters) whether the Hill Foundation that ostensibly received one-third of the royalties of "Happy Birthday" still existed in some form. It had apparently passed its share to ACEI. But ACEI now says, rather late in this process (a suit to which it wasn't a party), that it received the full ownership of all the Hill Foundation copyrights in a bequest.

Jessica Hill had inherited from her sister Mildred's estate her share in the rights to various songs, and Patty (who created the songs with Mildred) had the remaining rights. The two created the Hill Foundation as the entity to own these rights. The ACEI, which Patty helped to found, received Patty's share on her death. The remaining half was bequeathed to a nephew, who, because he died without issue, had his share revert to the ACEI in full. 

Thus the mystery of the Hill Foundation is solved, if the chain of bequests can be documented. The ACEI would be the owner of any rights that the sisters failed to assign properly to Summy. The ACEI has been receiving its royalty share from preceding owners and then Warner-Chappell.

So if it is proven the rights weren't properly assigned to Summy, they reside with ACEI, which can sign them over again properly today, at which point they would remain in effect either until 2017 or 2030. (There is an issue as to whether the rights were properly renewed after 28 years, however; if Summy did so, it wasn't entitled to, and thus even if they existed in 1935, they would have expired by 1964.)

The rights would expire in 2017 if an unpublished manuscript of the lyrics were found, as they would be protected for 70 years following Patty Hill's death. (Only the original creators' deaths are counted for this purpose.) If the 1935 registration is found valid and the transfer of rights is not, then the rights persist until 2030 due to the vagaries of copyright law extensions.

The leading expert on the "Happy Birthday" copyright status, explained the issue about an unpublished manuscript back in September:

However, the Hill sisters in the 1940s lawsuit maintained that they had made a transfer of rights in 1935. These are the rights that the judge said didn't exist. That ruling could leave the unpublished rights active. But Brauneis says, "We don't know that Patty Smith Hill ever wrote anything down." No manuscript has ever been mentioned nor presented across multiple trials and 125 years. This also requires that the Hills never "abandoned" the rights, a complicated concept, but Brauneis says his reading of the judge's ruling is that King leaned toward that interpretation.

One outcome is that the judge lets ACEI join the suit and produces a new summary judgment in which he finds the registration invalid or the rights abandoned, or turns to the reliance on an unpublished manuscript which, as there's no proof of one existing, would ostensibly be dismissed as well. It could also go to trial and any of these conditions might be met. In all of those cases, the copyright was never valid, and there was no basis by any party to collect royalties.

The ACEI receives a significant portion of its income from these royalties, and thus is motivated to pursue the case. (Its filing is here.)

What this means, however, is that the issue of whether lyrics are clearly in the public domain for the purposes of companies who want to avoid being socked with a copyright lawsuit for unlicensed use has been punted forward, potentially for months to years.