Update: I wrote a fully reported story about this for Fast Company that goes into some of the details in different ways, and includes expert insight from Robert Brauneis and Jennifer Jenkins.
A judge's ruling in a long-running suit about the song "Happy Birthday"—technically, about its lyrics, not the music—came down this evening, and at first glance, it seemed to state incontrovertibly that those words were in the public domain. Then I read the entire decision carefully, and while that's the almost certain reasonable effect, it's not necessary as crystal clear as one would hope. (You can read my earlier coverage about the suit at Boing Boing.)
The good news? Warner-Chappell pretty much lost. The judge said there there was no proper rights assignment for the lyrics traced back to the origin of where there needed to be one in 1935. Warner-Chappell "do not own a valid copyright in the Happy Birthday lyrics." The music company could appeal, but a higher court has to accept the case and find an error in procedure and application of the law.
The bad news? The brief lyrics for Happy Birthday are almost certainly in the public domain, but sadly not definitively so. The judge walked through the facts of whether the lyrics were ever protected under copyright and, if so, whether they might remain so. But he didn't make a ruling on that matter, because the rights issue was enough to issue a summary judgment.
Nearly all the initial news coverage I've seen—AP, New York Times, NPR—errs in stating the judge put the work into the public domain. Let's get things straight.
Sing, Sing a Song
What's agreed on is that Patty and Mildred Hill created a set of school-oriented children's songs in the 1880s, and which were published by the Clayton F. Summy Co. in 1893 (There are lots of questions about how many times Summy Co. dissolved and reformed without a chain of ownership, probably losing many rights along the way.)
The sisters retained the copyright to those songs; this was never disputed. Mildred bequeathed hers to a younger sibling, Jessica; Mildred died in 1913 and Patty in 1946. The original song with the tune that goes to "Happy Birthday" is "Good Morning To All."
Mildred probably had nothing to do with the lyrics; she composed the music. So it's Patty's life and death date that can affect any potential remaining copyright. There's also no dispute that the music—the tune—is long out of copyright based on its 1893 publication date.
The judge's examination found a series of complicated potentials. The crux is this excerpt from his ruling:
Defendants contend, in brief, that the Hill sisters authored the lyrics to Happy Birthday around the turn of the last century, held onto the common law rights for several decades, and then transferred them to Summy Co., which published and registered them for a federal copyright in 1935.
- The sisters apparently never showed anyone the "Happy Birthday To You" lyrics, and neither Patty nor anyone else appears to have discussed the alternate lyrics until 1935 when Patty was deposed in a lawsuit about the use of those lyrics in a stage musical. It can't be assumed without a trial that she ever created them, the judge notes.
- Patty might have retained a common-law right in the lyrics prior to 1909, even if they were never published. But there's no proof she ever wrote them down. You don't need a manuscript to prove an unpublished work existed, but the burden of proof is much higher if you can't pull one out. In this case, we're talking about something that existed in the 1890s, and wasn't available for a 1935 trial.
- Other books appeared right after the turn of the 20th century containing "Happy Birthday" lyrics with and without the music, which was under copyright at the time. The image above is from a 1922 book that credited Summy Co. (which both parties in the lawsuit make clear didn't own any rights at the time). The song also appeared in musicals and later in talking pictures. However, there's no proof that any of those appearances were authorized, so that doesn't shift ownership. You don't have to defend copyright to retain it.
- The judge wonders if the common-law rights were abandoned, but doesn't settle the issue at all.
- Oh, goodness, there are even other possibilities, but these are the major ones.
If Copyrighted, Nobody May Live Who Owns It
So that leaves several possibilities, given the judge says no rights transfer took place in 1935:
- It remained an unpublished work and was never registered (there is no definitive record), in which case, by current copyright law in America, it enters the public domain 70 years after the death of the authors. Patty died in 1946, putting the expiration at January 1, 2017. (Jessica, inheriting the rights, doesn't figure into the end of their term.)
- The work was covered by common-law rights, which governed copyright before federalization in 1909, but those rights were abandoned.
- Someone else wrote the words. However, all the extant examples are either pre-1923, and now in the public domain, or published without the right copyright notice, and were in the public domain immediately on distribution.
- The work was somehow published in 1935 in a form that could be judged legitimate. There is no record of its renewal, to be sure, as the Hill sisters believed they transferred rights to Summy Co. Without a renewal, a work from 1935 expired 28 years later, or January 1, 1964.
If the first of these scenarios is accurate, it's a truly orphaned work—its copyright ownership forgotten, there remains no heir nor organization that would assert these rights through 2016. (I am not a lawyer, so I'm not advising you in this matter.)
Robert Brauneis, a law professor acknowledged to be the expert on this song—and even he missed some points that came up during discovery for the lawsuit—said:
"If [the Hill sisters] didn't convey the rights to Summy Co., then is there someone else that might still own them?" With Mildred Hill dead for nearly a century now, Brauneis said, "Figuring out who owned [the rights] at this point would be quite an interesting job."
If any of the other three scenarios are true, it's in the public domain, either since creation, never, or decades ago.
The next step, according to the plaintiffs in the suit, is to pursue class-action status for a lawsuit to claw back fees. While I was told when the suit was filed that it was likely that fees paid could only be reasonably claimed by parties licensing from about three years before the lawsuit was filed—the statute of limitations for that sort of situation—the plaintiffs' attorney told the L.A. Times:
…the plaintiffs will pursue Warner for royalties paid since "at least" 1988, and could also ask the company to repay royalties that have been collected all the way back to 1935. It's not clear how much money that could entail.
Warner may appeal; it's still reviewing the suit. This isn't over yet.