“Happy Birthday” is an orphan copyright, not yet public domain

U.S. District Judge George H. King’s ruling earlier this week means that “Happy Birthday to You” is now what’s known as an “orphan work” — a copyrighted work that’s so old that nobody knows who to pay in order to use it legally.

It is not necessarily in the public domain but may be by default.

As expertly reported in Law 360, nobody is sure who, if anyone, owns “Happy Birthday” if Warner Music doesn’t. Did the Hills [original owners] have heirs who could claim ownership? Did they have business partners who could have passed rights along?

“The ruling highlights a current issue that many in the copyright field complain about,” attorney Naomi Jane Gray said. “Copyright now lasts so long that it can be very difficult to find the author in order to even try to ask them for permission to legitimately use their work.”

$2 Million in Annual Royalties

“While it might come as a surprise to most that anybody claimed to ‘own’ the ubiquitous birthday song,” reported Law 360, “Warner/Chappell had for years been quietly doing just that, raking in an estimated $2 million a year in licensing fees from filmmakers and C9E3AA0F864-184002687952B1A0FF62741others.

“Warner/Chappell, the publishing unit of Warner Music Group, long claimed that it had inherited a 1935 copyright for the song from a company it purchased in 1988, but a group of filmmakers and artists who paid those licensing fees challenged that claim in court in 2013. They said they’d found new documentary evidence that cast doubt on Warner’s claim and that they wanted their money back.

“On Tuesday, they won big. A California federal judge ruled that Warner’s predecessor company — Summy Co., which purportedly acquired the rights from the song’s original authors — had only acquired the rights to the song’s melody, which had long since passed into the public domain.”

As for the lyrics? There was no proof that Summy had ever actually acquired them, meaning Warner never owned them either.

For the full analysis go here.

Image source: http://www.ohmygoodness.com

About Bruce Berman

IP trend spotter, consultant and author.

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