Member Article

U.S. District Judge George H. King held that Warner, which had been receiving c$2million dollars per year in royalties, failed to adduce convincing evidence that it owned the copyright to the Happy Birthday lyrics (as distinct from the melody which is already in the public domain). The judge ruled that some of Warner's arguments were implausible and unreasonable. Consequently, in the absence of any other claim over the copyright, the Happy Birthday lyrics are now in the public domain.

What happened?

To prove that it owned the copyright in the lyrics, Warner was reliant upon two sisters (the Hill sisters) being the authors and subsequently transferring their rights in the lyrics to Warner's predecessor.

The U.S. District Judge asserted that it could not be determined with certainty, based on available records, who authored the Happy Birthday lyrics (it was agreed that the Hill sisters authored the melody, which was not in dispute in this case). The Judge went further stating 'even if we assumed that the Hill sisters did author the lyrics, they did not do anything with their common law rights in the lyrics,...they did not try to obtain federal copyright protection, they did not take legal action to prevent the use of the lyrics by others, even as Happy Birthday became very popular and commercially valuable'.

There was no record of an agreement transferring the rights in the lyrics to Warner's predecessor. As such, Warner attempted to argue that, based on a record of the Hill sisters (via the Hill Foundation) and Warner's predecessor merely describing an agreement which transferred rights in the 'piano arrangement', an agreement that the lyrics were transferred could be inferred. The Judge disagreed stating: "Obviously, pianos do not sing. Thus it was not logical to infer that rights in 'piano arrangements' would include the rights to any lyrics'.

The Judge concluded that because Warner's predecessor never acquired the right to the Happy Birthday lyrics, Warner never owned a valid copyright.

What's next?

This is not where the Happy Birthday lyrics copyright battle ends, Warner is fighting back. On 15 October 2015 Warner filed a motion requesting that the court reconsider its ruling or, alternatively, permit an appeal.

What does this mean for my business?

At the time of writing, this case marks the freedom of the Happy Birthday lyrics into the public domain. Irrespective of whether Warner is successful in its attempts to reverse or override the court's ruling, the case serves as a useful reminder of the value and importance of putting in place unambiguous written agreements as well as maintaining adequate records. In absence of valid written agreement the courts must look at the intent of the contracting parties, which causes uncertainty for all and may indeed have costly consequences.

How we can help

For advice on all copyright issues, drafting of copyright assignments and any other music industry agreements please contact Carol Isherwood at [email protected] 03700 865882.