The Happy Birthday Song Fight Continues

A month and a half ago, the “Happy Birthday Song” fight looked over.  A federal judge ruled that Warner/Chappell did not hold a valid copyright in the Happy Birthday Song’s lyrics, and could no longer collect royalties.  The judge held this because of issues with the original registration, and whether this registration included the lyrics to the song.  The court held that the original registration did not include the lyrics, and only applied to the melody (which is indisputably in the public domain).  This appeared to place Happy Birthday in the public domain.  In truth, Happy Birthday became an orphan work and that’s causing a new (if sadly predictable) twist in the case.

Orphan works are one of the oddest legal issues in copyright law.  Basically, an orphan work is a piece of art still covered under copyright with no clear owner.  It is not in the public domain, but no one has claimed it.  How does this happen?  Usually there’s a break in the chain of title.  Copyright terms are currently very long, running for 70 years after the death of the author.  After all, a lot could happen in 70 years.  The original artist could fail to be unclear as to who gets the copyrighted item in their will or the recipient could die without any clear heirs.  As Happy Birthday illustrates, there could also be a lack of clarity regarding who sold what.  When this happens, it’s usually a smart idea to simply avoid using the orphan work.  You can’t easily ask for permission, and may run into infringement issues later.  This has some effects on library digitization efforts, causing them to not digitize works with no clear owner.

In Happy Birthday’s case, that’s precisely what happened.  The Association for Childhood Education (ACE), a charity  co-founded by Happy Birthday’s original co-writer Patty Hill, and the Hill Foundation stepped forward recently to claim ownership of Happy Birthday.  The basis of the Hill children’s claim?  If Warner/Chappell’s ownership of Happy Birthday isn’t valid, then they must own the song instead.

ACE’s argument isn’t entirely laughable either.  According to Glenn Fleishman at Fast Company, ACE received about a third of the royalties from the song (Fleishman provides an excellent account of Happy Birthday’s tangled legal history, by the way).  That at least indicates some claim, or belief that ACE has a claim, to the original copyright.  This would be a difficult argument though.  First of all, the Hill sisters said that they transferred the rights in 1935 to what would become Warner/Chappell , which is the transfer ruled invalid in the original case.  Fleishman also points out the possibility that Patty Hill wrote down the lyrics, and never published them (which would put the expiration of rights in 2017).  ACE could potentially have a valid claim if they found an unpublished manuscript, since that would restore something resembling a chain of title (no easy task there).  There is an obvious problem with this argument: ACE would need to find some manuscript that proves Patty Hill wrote down the lyrics.  Without that, their only other real option is to argue that the court got their ruling on the 1935 registration wrong.

There are two lessons to take away from this case.  First, the Happy Birthday Song’s copyright will seemingly never, ever die (or at least, the case will never end).  Second, always tread very carefully with orphan works.  There is always the possibility that someone will claim it.  When the work is as valuable as Happy Birthday, then someone will almost certainly emerge to claim it.  Unless you have a good argument for Fair Use, it might be best to hold off until the court system makes its decision.

Have any questions about your own work? Make sure to shoot me at email on Nicotera Legal’s contacts page.


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