September 03, 2013 3:30pm PT by Eriq Gardner
Warner Music Aims to Keep 'Happy Birthday' Away From Public Domain (Exclusive)
With the English language's most recognized song at stake, Warner/Chappell Music is not backing down from a bold challenge. On Friday, the music publisher responded in court for the first time to a lawsuit that claims that "Happy Birthday" is in the public domain.
As first covered by The Hollywood Reporter and followed by news outlets around the world, the plaintiff in the case has traced the origins of the popular composition to a schoolteacher named Patty Smith Hill and her sister Mildred Hill in the late 19th century. The plaintiff has provided evidence that much of what we know about the song was already published by the time a copyright registration was attempted. As such, the lawsuit seeks to confirm that " 'Happy Birthday,' if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to 'Happy Birthday,' those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935."
Of course, Warner/Chappell was going to test this assessment, and the publisher is now moving to dismiss the lawsuit.
What won't be found in the defendant's motion to dismiss is any substantive discussion about what happened more than a century ago.
It's the contention of the plaintiffs in a consolidated lawsuit that includes musician Rupa Marya and filmmaker Robert Siegel that the Hill sisters wrote a composition in 1893 titled "Good Morning to All," and then sold their rights to Clayton Summy in exchange for 10 percent of retail sales. It's being argued that over the following few decades, variations of the song were sung by children, lyrics were printed, and that by the time a copyright registration was made, the work "consisted entirely of information that was common property and contained no original authorship, except as to the sheet music arrangement itself."
Warner/Chappell is not challenging this evidence -- yet -- because there's a much simpler way to have a judge reject a lawsuit that contends that the music publisher has unfairly extracted license fees over "Happy Birthday."
First, the music publisher is looking to trim the lawsuit. Warner/Chappell says that claims that it has violated California's unfair competition and false advertising laws are preempted by federal copyright law. And even if that's not true, Warner/Chappell says the lawsuit is "bereft of the 'who, what, when, where, and how' of any fraudulent conduct."
Next, the defendant is not only looking to have the lawsuit narrowed by having a judge reject state-based claims, but also wants the judge to limit its scope. If the Copyright Act applies, that means it would be subject to a three-year statute-of-limitations period, which would bar certain plaintiffs like Siegel from being a part of the lawsuit. If that theory holds, the plaintiffs would have to amend their lawsuit. As it stands now, Warner/Chappell says that the demand for declaratory relief should be dismissed or stricken "to the extent they are asserted on behalf of a putative class whose members licensed 'Happy Birthday to You' more than three years before the first operative complaint was filed."
The legal stratagem seems designed to limit Warner/Chappell's liability and to test the resolve of the plaintiffs' attorneys. Assuming the judge accepts the defendant's motion -- and that is far from assured -- as far as we can tell, there's nothing here that would stop the plaintiffs from filing a more modest lawsuit that dispenses with the bigger monetary claims in favor of ones that would test the theory that "Happy Birthday" is in the public domain now.
However, class action lawyers usually are in the game for money. Would they continue on the lawsuit if it is merely about establishing rights?
That question won't be resolved until a judge makes a decision on the motion to dismiss. At the moment, the papers by Warner/Chappell indicate that if the plaintiffs want to keep their big-money claims, they are going to have to do more work. What's at issue is not what happened a century ago but what has happened more recently.
As the defendant's papers put it: "Plaintiffs cannot state their fraud-based claims merely on account of Warner/Chappell's alleged licensing of the Happy Birthday to You copyright and statements about that copyright -- even if the copyright were ultimately found to be invalid. Plaintiffs do not allege that Warner/Chappell believed its copyright was invalid or otherwise acted deceptively or in bad faith. Plaintiffs assert legal conclusions as to why they believe the underlying copyright registrations were invalid. Plaintiffs nowhere allege, however, facts showing that Warner/Chappell knew or should have known..."
Below is the full motion to dismiss from Kelly Klaus at Munger, Tolles & Olson.