Chocolate-Birthday-Cakes_thumb.jpgOur friends at Techdirt have a great analysis on the ongoing ‘Happy Birthday’ copyright mess. Back in September, Warner Music was ruled not to have the copyright to this song, and many news outlets erroneously reported that this meant the song was in the public domain. But as Mike Masnick reminds us, that isn’t strictly true. The ruling only said Warner Music doesn’t hold the copyright. It has not ruled out that someone else might!

And now, we have a candidate for that ‘someone else.’ The heirs of the Hill sisters, who may have been the original composers of the song. The case is a tricky one because only the lyrics are in question; the melody is well-established in schoolbooks of the time and has passed to the public domain already. So the questions the court must now decide upon are as follows:

1) Did Patty Hill have a copyright claim on this song? It’s hard to say; since her sister predeceased her, any involvement she had in the song is moot. It’s Patty who is the issue here. The lyrics required publication to be enshrined with a fixed publication date, and she didn’t do this. So her authorship over the song may not be able to be definitively determined.

2) If she did have a copyright on it, did she defend it? Again, this is in dispute. Warner acquired the rights from another company, and the September ruling clarified that this had only covered the melody, the claim for which has now expired due to the passage of time. Did she intend for the sale to cover the lyrics too? Does her even selling the rights in the first place constitute an abandonment of her copyright claim? Does her failure to fix a date via publication constitute an abandonment?

3) Is a phrase such as ‘happy birthday to you’ unique enough to be copyrightable in the first place? I know that, for instance, when Vancouver was host to the Olympics, they tried to block other people who were hosting events in Vancouver from using the phrase ‘Vancouver 2010’ and they came under fire for it. Here in Canada, at least, you can’t copyright common things.

The saving grace is that the movie producer who first launched the case wants to keep it going; they have asked the supreme court to definitively declare the song to be in the public domain. So, we’ll get a ruling on it one way or the other.

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  1. Sad that the SCOTUS has to spend any time and effort considering what should be universally clear. Let’s just make copyrights non-transferable (including bequeaths) and non-assignable. Lawyers won’t like that but they do have many other sources of income.
    Unfortunately. most legislators are former, present or future practicing lawyers and, thus, have a vested interest in complexity and conflict.

  2. Since discovery in the lawsuit against Warner shows that there was a published version of it in 1921, with permission from the Sunny Corporation, I fail to understand how this could still be in copyright in the US.

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