According to a documentary filmmaker, the answer to that question is a resounding “Yes.” Last week, Good Morning to You Productions Corp. (“GMTY”), a New York based film company, filed a class action lawsuit seeking to remove any purported copyright protection for the song “Happy Birthday to You,” as well as recovering all allegedly improper licensing fees collected by the Defendant, Warner Music Group.
We have all sung it and had it sung to us. Warner Music, however, has apparently been collecting royalties on every commercial use of the song, to the tune of approximately $2 million dollars a year, according to the complaint. Happy Birthday to You, claims GMTY, originates from a song first published by Patty and Mildred Hill in 1893, titled Good Morning to All. Subsequent to that, a set of “Happy Birthday to You” lyrics was published in 1924, with an accompanying piano arrangement in 1935. It was the words plus arrangement for which Warner Music successfully obtained copyright protection. Under federal law, therefore, Warner retains the copyright until 2030, or 95 years after the arrangement was published. The complaint provides great detail on the litigation surrounding the ownership of Happy Birthday to You, but states that no court has determined the actual ownership rights of the song.
GMTY, therefore, claims that “More than 120 years after the melody to which the simple lyrics of Happy Birthday to You is set were first published, defendant Warner/Chappell boldly, but wrongfully, insists that it owns the copyright to Happy Birthday to You, and with that copyright the exclusive right to authorize the song’s reproduction, distribution, and public performances pursuant to federal law.” The complaint goes on to state that GMTY has proof that the song was in circulation in 1901, and that an Indiana school filed for copyright protection in 1912. Thus, goes the complaint, “Defendant Warner/Chappell either has silenced those wishing to record or perform Happy Birthday to You or has extracted millions of dollars in licensing fees from those unwilling or unable to challenge its ownership claims.”
Copyright challenges to older copyrights have been en vogue in recent years, including challenges to the ownership rights of both Zorro and Sherlock Holmes. If the Plaintiff here is successful in accomplishing its goals of either putting the song into the public domain or retrieving licensing fees collected by Warner Music, this case may serve as a catalyst for more litigation challenging copyright status through Rule 23. Notably, this case also seeks to utilize California Unfair Competition Law, Cal Bus & Prof Code Sec. 17200, as Warner Music is a California-based entity.