[Dixielandjazz] The New York Times: "Birthday Song’s Copyright Leads To A Lawsuit For The Ages" 6/14/2013

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Link To Story Online:     http://www.nytimes.com/2013/06/14/nyregion/lawsuit-aims-to-strip-happy-birthday-to-you-of-its-copyright.html?hp <http://www.nytimes.com/2013/06/14/nyregion/lawsuit-aims-to-strip-happy-birthday-to-you-of-its-copyright.html?hp&_r=0> &_r=0

 

 

  


Birthday Song’s Copyright Leads To A Lawsuit For The Ages


 

 

 

  The song “Happy Birthday to You” is widely credited for being the most performed song in the world. 

 

  But one of its latest venues may be the federal courthouse in Manhattan, where the only parties may be the litigants to a new legal battle.

 

The dispute stems from a lawsuit filed on Thursday by a filmmaker in New York who is seeking to have the court declare the popular ditty 

to be in the public domain, and to block a music company from claiming it owns the copyright to the song and charging licensing fees for its use.

 

The filmmaker, Jennifer Nelson, was producing a documentary movie, tentatively titled “Happy Birthday,” about the song, the lawsuit said. 

In one proposed scene, the song was to be performed.

 

But to use it in the film, she was told she would have to pay $1,500 and enter into a licensing agreement with Warner/Chappell, the publishing arm 

of the Warner Music Group. Ms. Nelson’s company, Good Morning to You Productions, paid the fee and entered into the agreement, the suit says.

 

“Before I began my filmmaking career,” Ms. Nelson said in an e-mail forwarded by her lawyer, “I never thought the song was owned by anyone. 

I thought it belonged to everyone.”

 

The lawsuit notes that in the late 1800s, two sisters, Mildred J. Hill and Patty Smith Hill, wrote a song with the same melody called “Good Morning to All.” 

The suit tracks that song’s evolution into the familiar birthday song, and its ownership over more than a century.

But although Warner/Chappell claims ownership of “Happy Birthday to You,” the song was “just a public adaptation” of the original song, 

one of Ms. Nelson’s lawyers, Mark C. Rifkin, said in a phone interview.

 

“It’s a song created by the public, it belongs to the public, and it needs to go back to the public,” Mr. Rifkin said.

 

A spokesman for Warner/Chappell declined to comment on the suit. The company  <http://www.nytimes.com/1988/12/20/business/the-media-business-sound-of-a-25-million-deal-happy-birthday-to-warner.html> paid $25 million in 1988 to acquire Birchtree Ltd., 

a small company whose musical holdings included the birthday song.

 

Mr. Rifkin cited an estimate that Warner/Chappell collected approximately $2 million per year in licensing fees for the song. 

He added that the suit asks that the firm return all the fees for the song it has collected in the past four years.

 

The rich history of the song’s evolution and the conclusion that it might be in the public domain closely tracks the findings of Robert Brauneis, a professor 

at the George Washington University Law School and the author of a 68-page article titled “Copyright and the World’s Most Popular Song.”

 

In the study, Professor Brauneis said that “it is doubtful that ‘Happy Birthday to You,’ the famous offspring of ‘Good Morning to All,’ is really still under copyright.”

 

“I believe this song is in the public domain and therefore it is not owned by anyone,” Professor Brauneis said in a phone interview on Thursday. He said 

“Happy Birthday to You” was “economically significant” in that it “still produces millions of dollars of income in a year,” and that a successful legal challenge 

“might be a model for challenges to other songs.”

 

He said that another of Ms. Nelson’s lawyers, Randall S. Newman, had spoken with him about his study, but that he was not a consultant in the lawsuit.

 

Ms. Nelson is not the first documentarian to confront the issue of paying to use the Happy Birthday song. The filmmaker Steve James paid $5,000 to use 

the song in the acclaimed 1994 documentary “Hoop Dreams,” in which it is sung at a man’s 18th birthday party.

 

“It was an important scene,” Mr. James said in  <http://www.nytimes.com/2005/10/16/movies/16rams.html> a 2005 article in The New York Times, “there was some amazement that Arthur had made it to 18. Of course, we wanted that in.”

 

Ms. Nelson, asked what she envisioned for her documentary, responded in the e-mail that her film would be about the “song’s history and its future.” 

The suit seeks to be given class-action status on behalf of all others who have paid licensing fees for it since 2009.


A version of this article appeared in print on June 14, 2013, on page A24 of the New York edition with the headline: Birthday Song’s Copyright Leads to a Lawsuit for the Ages .