Up until this past August, two California music companies were enforcing the copyright of the song “Happy Birthday” and requiring television shows and movies to pay royalties to use the song. But a class action lawsuit brought against the two music companies resulted in a settlement stating that the copyright to the lyrics would not pass to the music company’s successors in interest. In other words, no more royalties would be paid — “Happy Birthday” is in the public domain. After some initial skirmishing, Judge George King ruled that the copyright in the lyrics, to the extent it remained valid, did not pass to the music companies’ predecessors in interest.  Thereafter, the parties reached a settlement resulting in a judicial declaration that Happy Birthday is in the public domain and establishing a $14 million fund to reimburse class members who had previously paid royalties to use Happy Birthday.  Judge King approved the settlement on June 20, 2016 and, in August 2016, awarded the plaintiffs’ counsel over $4 million in attorneys’ fees. Publication of the complete Happy Birthday lyrics first occurred in a 1911 book titled The Elementary Worker and His Work.  Unfortunately, that book did not credit anyone with authorship of the lyrics, and only mentioned that Happy Birthday and Good Morning to All shared the same tune, and that Good Morning to All had been published in a previous book.  A copyright registration for The Elementary Worker and His Work issued in 1911.

Another $4 million was authorized for attorneys’ fees. The song “Happy Birthday” began as “Good Morning to All” in 1893 when it was composed by sisters Mildred and Patty Hill. It’s not known who changed the lyrics or when they were changed. A book published in 1911, “The Elementary Worker and His Work,” saw the publication of the lyrics for the first time. No author was listed. In the years since 1911, suits and countersuits have been filed regarding copyright registrations of the lyrics to “Happy Birthday.” Now that the song is in the public domain, anyone can sing the song on film or in performance without having to pay a fee, and the lyrics may also be changed if they are a parody.  Atlanta attorney John Seay of The Seay firm practices in the area of intellectual property law. He said that generally, “The question of when a song enters the public domain is complicated. Anything published before 1923 is in the public domain. Note that ‘published’ basically means distributed for public consumption.” Litigating whether or not a song is in the public domain can be time-consuming and tricky.  Such cases are difficult to prove. In the case of “Happy Birthday,” the plaintiffs felt it was worth it. Seay said. “Almost no one actually files a lawsuit because of the expense and uncertainty involved,” he said. “Normally the plaintiff would be a film production company.  “Much cheaper and quicker just to pay the license fee, which is what the corporate rights-holders want. Warner/Chappell made $2 million per year on royalties for Happy Birthday — you bet they didn’t want to lose that right and had no problem spending big bucks to litigate the case.”

Normally, a settlement agreement is confidential and applies to only the plaintiffs bringing suit. In the case of “Happy Birthday,” the plaintiffs prevailed, and Seay said that “the plaintiffs stuck to their guns and achieved a result that is good not only for them, but for other filmmakers, production companies and really everyone.”

KEYWORDS: litigation, copyright, royalties, plaintiffs, public domain, copyright infringement, settlement agreement, intellectual property.