“Happy Birthday” Copyright – no more happy returns

Since 1988 the company Warner/Chappell Music has collected copyright royalties in relation to the song Happy Birthday.  A recent judgment in the US has put an end to that.

If you are a copyright owner you’re entitled to charge for the use of your copyrighted work.  It can be lucrative – it’s estimated that Warner Chappell made about $2m per year collecting royalties in relation to Happy Birthday – but copyright is a notoriously complex area of law and things are never quite as simple as they seem.  A piece of music, for example, will have separate copyrights in relation to the lyrics, the melody and the score.  If it’s recorded there will be separate rights in the recording too.  To make things more complicated, these copyrights can be passed from one party to another over time.

The US case related only to the copyright in the lyrics of the song – the copyright in the music has already entered the public domain.  What made it particularly challenging for Warner/Chappell was that the original lyrics had been written, by Mildred and Patty Hill, two sisters in Kentucky, well over a hundred years ago then apparently transferred to a company which published them and registered them for copyright in 1935.  That registration was then bought by Warner/Chappell, from a successor of that first company, fifty years later.

What Warner/Chappell had to do to win was show a clear “chain of title” running from them to the original writers of the lyrics.

Unfortunately for them, they couldn’t do that – the judge decided that there was no evidence that the sisters’ rights had actually been passed to the company that registered them with the result that they could not have been passed to the company which Warner Chappell bought.  That meant they were not entitled to charge for use of the song.

The party’s not quite over though; the judgment is being appealed.

Phil Gorski

Phil Gorski
Intellectual Property Team
0113 227 9318

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