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Sunday, August 18, 2019

Class action allows everyone to sing Happy Birthday

By Dee Thompson | Nov 2, 2016

LOS ANGELES (Legal Newsline) - 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.

Judge George King in the Central District of California approved a settlement authorizing a $14 million fund to reimburse the plaintiffs who had, in the past, paid royalties to use the song. 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.”

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U.S. District Court for the Central District of California