Home » Copyright/Intellectual Property » Filmmaker Says Unearthed Songbook Proves ‘Happy Birthday’ Is in Public Domain

Filmmaker Says Unearthed Songbook Proves ‘Happy Birthday’ Is in Public Domain

30 July 2015

From Variety:

There’s a twist in a long legal tangle over the copyright to “Happy Birthday to You.”

First, though, it’s a surprise to many that there is still a claim to copyright on the song, which is sung, well, just about anytime and everywhere anyone is marking a birthday.

Warner/Chappell Music’s claim to own the rights is being challenged in a federal court, and a documentary filmmaker now contends that she has a “smoking gun” proving that the song’s copyright protection expired long ago, if it ever had protection in the first place.

The filmmaker, Jennifer Nelson, was making a documentary about the history of the song, and paid a license fee to Warner/Chappell for its use. But she and her company, Good Morning to You Productions Corp., filed a lawsuit in 2013 challenging the music publisher’s claim to the song.

In a recent court filing, her lawyers say that a batch of documents produced by Warner/Chappell includes a PDF copy of a 1927 songbook that includes the “Good Morning and Birthday Song,” but with no copyright claims identified. Instead, it includes this line: “Special permission through courtesy of the Clayton F. Summy Co.” Her attorneys also obtained an earlier, 1922 version of the songbook, again with the song and no claim of copyright.

Summy Co. was a music publisher of the time.

. . . .

Under the laws of the time, her attorneys contend, the work fell into the public domain as it did not include a notice that it was under copyright.

But Warner/Chappell argues that the Clayton F. Summy Co. did not own the copyright in 1922 — and that at the time, “Good Morning to All,” on which it was based, was already in its renewal term.

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 medley.

Warner/Chappell contends that Jessica Hill, a sister who had inherited Mildred Hill’s interest in the song after her death in 1916, renewed the copyright to “Song Stories,” which included “Good Morning to All,” in 1921.

. . . .

Warner/Chappell acquired the company that claimed ownership of the song, Birch Tree Hill, in 1998. It has collected license fees for the use of the song in movies, TV shows and other music productions.

The plaintiffs attorneys argue that the 1935 copyright registration covers only piano arrangements.

Link to the rest at Variety and thanks to Casey for the tip.

Since you’ve been wondering about copyright notice for several days, here’s a brief primer.

Since 1978 under US law and since March 1, 1989, under the Berne Convention Implementation Act of 1988, use of a copyright notice on a copyrighted work is not mandatory.

Prior to 1978, under the 1909 Copyright Act, in the US, any publication of a copyrighted work authorized by the copyright owner that did not contain a proper notice of copyright, all copyright protection was forever lost in the US.

Even though not required for copyright protection, placing a copyright notice on your work is a good idea because it prevents an infringer from claiming that the infringement was innocent, thus possibly reducing the damages an infringer would be required to pay.

So, what is a proper copyright notice for a book? According to Circular 3 from the United States Copyright Office, three things are required:

  1. The symbol © (letter C in a circle); the word “Copyright”; or the abbreviation “Copr.”
  2. The year of first publication. If the work is a derivative work or a compilation incorporating previously published material, the year date of first publication of the derivative work or compilation is sufficient. Examples of derivative works are translations or dramatizations; an example of a compilation is an anthology. The year may be omitted when a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or useful articles.
  3. The name of the copyright owner, an abbreviation by which the name can be recognized, or a generally known alternative designation of owner.

Example © 2012 Jane Doe

In some other countries, the word, Copyright, may not be a proper notice. © is recognized everywhere.

How do you get the © symbol? If you have autocorrect turned on in MS Word, when you type (c), Word will change it to ©. If that doesn’t work, you can use the Insert Symbols command in Word and hunt around until you find it. © is also ASCII symbol 169, so in Windows, if you hold the ALT key and type 0169, © should appear.

Speaking of (c), which is frequently used in place of ©, particularly in computer programming, PG remembers lots of disagreements in years past about whether (c) was a proper way of giving notice under the 1976 Act.

More recently, that argument seems to have died down. Since, under current law, the author automatically has a copyright as soon as the work is in fixed form without any notice, most attorneys would agree that (c) and © should both be adequate for the purposes of informing someone of a claim of copyright.

Copyright/Intellectual Property

19 Comments to “Filmmaker Says Unearthed Songbook Proves ‘Happy Birthday’ Is in Public Domain”

  1. Thanks, PG! New writers are always asking me about copyright stuff. Now I can give them a link to your comment here. Very useful!

  2. People do seem to prefer to say both these days. I often see:

    (c) Copyright 2015 Patrice Fitzgerald

    I guess they’re not QUITE sure people will recognize the symbol… glad you spelled this out here, PG.

    Now you are going to get questions about whether it’s safe to sing the song!

    • If I’m not mistaken, Warner Brothers has tried to collect royalties from people who posted YouTube videos of a kid’s birthday party.

      Some bars and restaurants in the U.S. will sing a generic birthday song on request to a patron who’s having a birthday (usually it’s someone else’s request :-)). Very few of them will sing the standard Happy Birthday song, though. I suspect that venues have been sued for it in the past.

  3. Nice summary. =)

    Worst case of something entering public domain due to lack of notice: Night of the Living Dead.

    It was originally Night of the Flesh Eaters, and had the notice. However, the film’s distributor changed the title and failed to include it. Which turned into a lot of money going to other people when VCRs came about and companies realized the error.

    • On the other hand, it turned into a nice career for Romero. Would he have been as successful if that movie hadn’t been so widely distributed due to lack of copyright?

      • Yes. It was the 80s before anyone realized or could do anything about it. Romero had made several movies by that point including Dawn of the Dead, The Crazies, Martin, and possibly Creepshow. Right around that time period is when all the knockoffs started.

    • IIRC, the only reason It’s a Wonderful Life is a Christmas classic is for the same reason – someone forgot to renew the copyright.

    • ***when VCRs came about***

      Which I remember. Thanks for making me feel old… 🙂

  4. Hmm… so if they lose, will Warner Brothers have to return all the royalties they’ve collected?

  5. Chris Armstrong

    Then I can finally admit publicly to having a bootleg recording of Tom Waits singing Happy Birthday.

  6. What about “All rights reserved”?

  7. [M]ost attorneys would agree that (c) and © should both be adequate for the purposes of informing someone of a claim of copyright.

    Now, PG, you and I both know the opinion of most attorneys is not worth a bucket of warm spit. Most attorneys I knew agreed with the bankruptcy and appellate courts’ decisions in ACC v Rash, but the SCOTUS overturned King’s well-reasoned holding.

    In copyright, a federal judge’s opinion is the only one that matters. If there is precedent that (c) is sufficient, then it is. Otherwise, it is actionable.

    “Contrariwise,” continued Tweedledee, “if it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.”

  8. So how the hell did Warner end up with it?

  9. the Other Diana

    I hope they don’t come after my toddler. She sings it to everyone. Eek.

  10. Hey, I thought copyright means it is all right to copy 🙂

  11. Note to self: include the symbol as well as the word.

  12. I know we all make our money from our copyrights, but the current laws are ludicrous. At some point, things enter the collective ownership of society, and the happy birthday song would be an excellent example.

    Go back to 28+28. If you can’t make enough money in 56 years, there’s something wrong with you.

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