'Happy Birthday' Case Built on Prof.'s Article

“When I saw that I thought, 'Really, is that possible?'” said Brauneis, a George Washington University Law School professor who clerked for Justice Breyer on the U.S. Court of Appeals for the First Circuit.

The plaintiffs' team behind the recent “Happy Birthday” decision included documentary filmmaker and lead plaintiff Jennifer Nelson, New York solo practitioner Randall Newman, and a team of class action specialists from Wolf Haldenstein Adler Freeman & Herz led by Mark Rifkin. Together they set out to unravel something of a mystery behind the rights to the 122-year old song.

What was known was that Kentucky sisters Mildred and Patty Hill had written the famous melody for a song called “Good Morning to All” some time prior to 1893, when it was first copyrighted in a book published by Clayton F. Summy. What was less clear was who could claim ownership of the song's more famous cousin, “Happy Birthday to You,” though Summy's successors, including Warner/Chappell, claimed exclusive right to “Happy Birthday.”

The man who'd come closest to tracking down an answer was Brauneis. Following the Eldred decision, he'd embarked on an investigation of the Hill sisters and the Clayton F. Summy Co. Brauneis unearthed litigation between Jessica Hill, Mildred and Patty's sister, and a producer for Irving Berlin who included “Happy Birthday” in one of his musicals. Although Jessica asserted the Hill sisters' 1893 and 1896 copyrights for the melody to “Good Morning to All,” she made no claim regarding “Happy Birthday.”

Professor Brauneis said he also found a trove of material about “the management and mismanagement” of a non-profit that was a prime beneficiary of the Hills, and legal disputes between the foundation and the Summy Co. Notably, none of the suits asserted a claim to any copyright to the “Happy Birthday to You” lyrics.

In 2010, Brauneis published “Copyright and the World's Most Popular Song,” a 68-page journal article concluding that it was “doubtful” the song was really still under copyright protection. “When a copyright gets as long as it is now, it's just very, very hard to try to go back and try to reconstruct things that happened 80, 90, 100 years ago which turn out to affect the rights to the work,” said Brauneis in a phone interview after the recent L.A. federal court ruling.

Nelson, who paid $1,500 to use the song in a film about its history, found Brauneis' article and passed it along to Newman, a lawyer also trained as an accountant who she'd met through friends. Ultimately, Newman found even more lawsuits involving Summy Co. that hadn't asserted any copyrights to “Happy Birthday.”

When Newman recognized that the case was too big to handle on his own, he pitched Rifkin and his firm about joining him. Rifkin had worked previously with Newman in an antitrust class action against Apple Inc. and a trademark case against the National Entertainment Collectibles Association.

In June 2013, the lawyers sued on behalf Nelson's production company asking to bar Warner/Chappell from asserting a copyright for the song. They also sought to certify a class to recoup the licensing fees paid to the company for past use of the song.

At one point, Warner/Chappell's lawyers at Munger, Tolles & Olson handed over a copy of The Everyday Song Book published in 1922 that included the “Happy Birthday” lyrics. A line beneath the song's title was smudged, and Newman scoured the Internet to find another copy, leading to what might have been a smoking gun: The smudged line said “Special permission through courtesy of The Clayton F. Summy Co.” If the song was copyrighted back in 1922, not in 1935 as Warner/Chappell's lawyers argued, the song would have already fallen into the public domain.

Central District of California District Judge George King allowed the book in as evidence, but held off on declaring the song part of the public domain. Instead he focused on the scope of the copyrights transferred to Summy Co., which he said only pertained to piano arrangements. “Obviously, pianos do not sing,” King wrote. “Thus, it is not logical to infer that rights to 'piano arrangements' would include rights to any lyrics or words as well.”

Newman said he “wouldn't have even known where to begin” without Brauneis' article. “Every source that [Brauneis] cited I went and looked at myself,” Newman said.

Ross Todd is a Senior Reporter with The Recorder, the San-Francisco-based ALM sibling of Entertainment Law & Finance.

When U.S. Supreme Court Justice Stephen Breyer dissented from a 2003 ruling upholding a 20-year extension to U.S. copyrights, he held out the song “Happy Birthday to You” as a prime example of copyright overreach. The “Happy Birthday” copyright issued in 1935 was “still in effect and currently owned by a subsidiary of AOL Time Warner,” marveled Breyer in Eldred v. Ashcroft, 537 U.S. 186 (2003).

That's no longer the case since a federal judge in Los Angeles ruled in September 2015 that Warner/Chappell Music does not hold a copyright to the song's lyrics, upending an 80-year licensing campaign that generated an estimated $2 million per year. See, Majar Productions LLC v. Warner/Chappell Music Inc., 2:13-cv-05164.

The victory caps a case that became a passion project for a group of lawyers. At its heart lies the research of Robert Brauneis, a former Breyer clerk turned academic who took special interest in Justice Breyer's remark about the “Happy Birthday” copyright.

“When I saw that I thought, 'Really, is that possible?'” said Brauneis, a George Washington University Law School professor who clerked for Justice Breyer on the U.S. Court of Appeals for the First Circuit.

The plaintiffs' team behind the recent “Happy Birthday” decision included documentary filmmaker and lead plaintiff Jennifer Nelson, New York solo practitioner Randall Newman, and a team of class action specialists from Wolf Haldenstein Adler Freeman & Herz led by Mark Rifkin. Together they set out to unravel something of a mystery behind the rights to the 122-year old song.

What was known was that Kentucky sisters Mildred and Patty Hill had written the famous melody for a song called “Good Morning to All” some time prior to 1893, when it was first copyrighted in a book published by Clayton F. Summy. What was less clear was who could claim ownership of the song's more famous cousin, “Happy Birthday to You,” though Summy's successors, including Warner/Chappell, claimed exclusive right to “Happy Birthday.”

The man who'd come closest to tracking down an answer was Brauneis. Following the Eldred decision, he'd embarked on an investigation of the Hill sisters and the Clayton F. Summy Co. Brauneis unearthed litigation between Jessica Hill, Mildred and Patty's sister, and a producer for Irving Berlin who included “Happy Birthday” in one of his musicals. Although Jessica asserted the Hill sisters' 1893 and 1896 copyrights for the melody to “Good Morning to All,” she made no claim regarding “Happy Birthday.”

Professor Brauneis said he also found a trove of material about “the management and mismanagement” of a non-profit that was a prime beneficiary of the Hills, and legal disputes between the foundation and the Summy Co. Notably, none of the suits asserted a claim to any copyright to the “Happy Birthday to You” lyrics.

In 2010, Brauneis published “Copyright and the World's Most Popular Song,” a 68-page journal article concluding that it was “doubtful” the song was really still under copyright protection. “When a copyright gets as long as it is now, it's just very, very hard to try to go back and try to reconstruct things that happened 80, 90, 100 years ago which turn out to affect the rights to the work,” said Brauneis in a phone interview after the recent L.A. federal court ruling.

Nelson, who paid $1,500 to use the song in a film about its history, found Brauneis' article and passed it along to Newman, a lawyer also trained as an accountant who she'd met through friends. Ultimately, Newman found even more lawsuits involving Summy Co. that hadn't asserted any copyrights to “Happy Birthday.”

When Newman recognized that the case was too big to handle on his own, he pitched Rifkin and his firm about joining him. Rifkin had worked previously with Newman in an antitrust class action against Apple Inc. and a trademark case against the National Entertainment Collectibles Association.

In June 2013, the lawyers sued on behalf Nelson's production company asking to bar Warner/Chappell from asserting a copyright for the song. They also sought to certify a class to recoup the licensing fees paid to the company for past use of the song.

At one point, Warner/Chappell's lawyers at Munger, Tolles & Olson handed over a copy of The Everyday Song Book published in 1922 that included the “Happy Birthday” lyrics. A line beneath the song's title was smudged, and Newman scoured the Internet to find another copy, leading to what might have been a smoking gun: The smudged line said “Special permission through courtesy of The Clayton F. Summy Co.” If the song was copyrighted back in 1922, not in 1935 as Warner/Chappell's lawyers argued, the song would have already fallen into the public domain.

Central District of California District Judge George King allowed the book in as evidence, but held off on declaring the song part of the public domain. Instead he focused on the scope of the copyrights transferred to Summy Co., which he said only pertained to piano arrangements. “Obviously, pianos do not sing,” King wrote. “Thus, it is not logical to infer that rights to 'piano arrangements' would include rights to any lyrics or words as well.”

Newman said he “wouldn't have even known where to begin” without Brauneis' article. “Every source that [Brauneis] cited I went and looked at myself,” Newman said.

Ross Todd is a Senior Reporter with The Recorder, the San-Francisco-based ALM sibling of Entertainment Law & Finance.