Happy (121st, or maybe 113th, or some other large-numbered) birthday, “Happy Birthday To You”

July 29

Here’s a story to warm the hearts of 4-year-olds everywhere.  “Happy Birthday to You” – the most popular, and the most recognizable, song in the English language, according to a 1999 report issued by ASCAP – may be about to be liberated from its copyright shackles.  Free at last!

I have a little personal interest in this one.  About 6 months ago, my son Sam composed, performed, and posted on Youtube a short fantasia based on the familiar “Happy Birthday” theme.  [It's quite a wonderful little piece - you can hear it here]  I’m supposed to know something about copyright law, so he asked me:  Is someone going to claim that this is infringing his/her copyright?

It was not a purely academic question.  Sam had received about a half-dozen absolutely preposterous copyright infringement notices from Youtube over the past couple of years, courtesy of EMI Records, Inc., each asserting that one of his performances of music that even EMI, Inc.’s copyright robot should know damn well is in the public domain – pieces by Bach, Chopin, and Mozart – was somehow infringing EMI’s copyright, and that Youtube was going to disable access to it.

[Note to EMI's lawyers:  Sec. 512 (f) of the Copyright Act provides that "any person who knowingly materially misrepresents . . . that material or activity is infringing . . . shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, . . . as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing. . ."  Just sayin'.]

So even though he had sent back “counter-notifications” in all cases, explaining that the material was, indisputably, not infringing, his Youtube account could well have looked a little dubious, and could even be in jeopardy of suspension under whatever version of a “three strikes and you’re out” policy Youtube has in place, and losing a Youtube account is not a very good thing for a young musician; so it wouldn’t be a great idea to post something that invites another infringement notice, especially if it was, this time, a valid claim.

So I checked with friend and colleague Bob Brauneis at GW Law School, who wrote a definitive analysis of the “Happy Birthday” copyright claims several years ago. His conclusion then:

“Happy Birthday to You” is the best-known and most frequently sung song in the world. Many – including Justice Breyer in his dissent in Eldred v. Ashcroft – have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but which nonetheless remains under copyright. Close historical scrutiny reveals both of those assertions to be false. The song that became “Happy Birthday to You,” originally written with different lyrics as “Good Morning to All,” was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.

The falsity of the standard story about the song . . . reveals collective action barriers to mounting challenges to copyright validity: the song generates an estimated $2 million per year, and yet no one has ever sought adjudication of the validity of its copyright. . . . 

So Sam was in the clear – sort of.  No copyright (and therefore no infringement) – but the song was generating $2 million a year in royalties!?  Nice work, as they say, if you can get it.

But now comes word via Techdirt that a class action suit has been filed by Good Morning to You, Inc. against Warner/Chappell Music, the entity that has been asserting copyright ownership over HBTY (and collecting those royalties).  The suit seeks a “declaration that Happy Birthday to You is dedicated to public use and is in the public domain.”  It also seeks certification of a class consisting of “all persons or entities who entered into a license with Warner/Chappell or paid Warner/Chappell, directly or indirectly through its agents, a licensing fee for the song Happy Birthday to You” since June, 2009, and it seeks “monetary damages and restitution of all the unlawful licensing fees that defendant Warner/Chappell improperly collected” from all class members during that period.

I don’t know very much about class certification or class actions in general, but if they succeed in getting the class certified — dismantling what Brauneis called the “collective action barriers to mounting challenges to copyright validity” – and if they’re right about the $2 million a year, this could get very interesting, very quickly.

 

David Post taught intellectual property and Internet law at Georgetown Law Center and Temple University Law School until his recent retirement. He is the author of "In Search of Jeffersons Moose: Notes on the State of Cyberspace" (Oxford, 2009), a Fellow at the Center for Democracy and Technology, and an Adjunct Scholar at the Cato Institute.
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