There’s a new development in the litigation intended to free “Happy Birthday to You” from copyright protection. Now that a judge has ruled that Warner/Chappell Music doesn’t hold a valid copyright to the popular song’s lyrics, and as the publisher urges either reconsideration or the opportunity to appeal, a charity organization is making a bid to intervene with the argument that child well-being is on the line.
On Monday, the Association for Childhood Education stepped forward for the first time in the yearslong dispute that will determine whether filmmakers still have to pay to feature “Happy Birthday” in motion pictures and television shows.
The charity identifies itself as being co-founded by Patty Hill, the schoolteacher who wrote “Happy Birthday” in the late 19th century. ACE, which works with the United Nations and gathers information about childhood education practices throughout the world, plus provides students with grants and awards, says that it was bequeathed full interest in the Hill Foundation, which itself gets a third of all “Happy Birthday” income thanks to a 1944 agreement.
“These royalty payments represent a substantial portion of the Organization’s yearly budget,” says ACE in its legal papers. (Read them here.)
In September, U.S. District Court judge George H. King ruled there wasn’t plausible evidence to suggest that rights to “Happy Birthday” lyrics transferred from Hill to the music publishers. The judge stopped short of declaring the song in public domain because of other triable issues like copyright abandonment or divestive publication.
Some legal observers have suggested that the result of King’s decision was to effectively make “Happy Birthday” an orphan work, but ACE has a different take.
“While, until recently, the Applicants believed there was a valid assignment between Summy Co. and the Hill sisters, the Court’s summary judgment order raised the very real likelihood that the Applicants are, in fact, the owners of the copyrights,” ACE tells the judge.
If the judge allows intervention, this will mean a three-way fight for control of a song that is reputed to make $2 million a year in royalties.
The plaintiffs in the case still want to go the distance by having the song declared in the public domain and are eyeing a trial in December. Warner/Chappell is looking to overturn the September ruling with the argument that the judge should have given a 1935 copyright registration presumption of validity. The National Music Publishers Association has filed an amicus brief in support of Warner/Chappell that states that if Judge King’s decision stands, it will “negatively impact the entire creative community and will further create a flood of litigation.” The plaintiffs say that Warner/Chappell is asserting no new arguments, no new evidence and no new law — and that the “Happy Birthday” dispute turns on facts — and so reconsideration and an interlocutory appeal are inappropriate.
Judge King will decide the next steps.