Should 'Happy Birthday to You' be in the public domain?

A new class-action lawsuit filed against Warner Music Group publishing could be the final push that places the 122-year-old song firmly into the public domain. 

The lawsuit filed by Jenn Nelson and her New York-based Good Morning to You Productions, was sparked during the production of her documentary of the song's history. As part of her investigation, Nelson found a 2010 paper written by Robert Brauneis, a professor at the George Washington School of Law, arguing that the song's infamous copyright was invalid. 

While making her documentary, Nelson was charged $1,500 to use the song: a fee she says is a running joke in the film industry. "In the film industry it's a bit of a joke to have to pay for the song," she said in an interview on The Frame. "People think it's ridiculous, but they do it anyway because the fee … doesn't hinder you from doing it. It's just sort of inconvenient and annoying. I took it to my lawyer… and we decided that we actually had a good case and we decided to file."

Nelson's attorneys claim that the song actually entered the public domain back in the 1920s, and that, as such, the 1935 copyright owned by Warner/Chappell is invalid. Supporting their claim is a songbook published in 1927 that contains "Good Morning and Birthday Song" without any notice of copyright. According to the 1909 Copyright Act, a song being published without copyright means it's properly entered the public domain.

Warner/Chappell is currently collecting approximately $2,000,000 a year in licensing fees. A judge is currently reading through the case's new evidence, and is expected to provide a ruling within a month.

If you are in the middle of a copyright dispute, or if you think someone else is profiting from your own work, it is important to speak with a skilled business attorney. A lawyer can help protect your rights in case of litigation.

Categorised in: Intellectual Property Law

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