‘Happy Birthday’ Ownership Judgment Will Wait on “Smoking Gun” Evidence

“Happy Birthday” will stay out of the public domain a little while longer. In a hearing Wednesday, the judge of the class-action suit over the rights to the song took under consideration motions for summary judgment from both sides.

The hearing in California federal court presented a particularly comprehensive look at how the ownership of the most popular song in the English language will be decided, with Good Morning to You Productions contesting Warner/Chappell’s purported right to the song, which brings in reportedly $2 million per year.

The plaintiffs, who filed suit in 2013 after the publisher requested $1,500 for director Jennifer Nelson to use the song in her “Happy Birthday,” documentary, claim the tune belongs in the public domain.

In summary judgment motions, the opponents disputed in November whether the song’s entrance into the public domain precedes and precludes a copyright to the melody and lyrics filed in 1935 by Clayton Summy, who decades previous took over the sisters’ interest in a version of the song. Warner/Chappell is relying on Summy’s 1935 registration.

Judge George King told the parties in May he wanted more briefing the question of abandonment. If the plaintiffs establish the song’s composers, schoolteacher Patty Smith Hill and Mildred Hill, surrendered the song to the public prior to 1935, the song is outside Summy’s copyright.

What Wednesday’s hearing didn’t include was discussion of the motion filed Monday for the introduction of evidence, which attorneys for the production company called a “smoking gun.” They say the evidence, including a 1922 songbook with uncredited “Happy Birthday” lyrics, prove the song was in the public domain prior to 1935. In its response on Tuesday, Warner/Chappell isn’t disputing the introduction of the evidence, but argues triable questions still exist such as whether the book was published with proper authorization. Judge King in court Wednesday ordered the plaintiffs to reply within seven days. When they reply, he could decide on the summary judgment or hold a new hearing.

“I was a little disappointed that [discussion of the new evidence] didn’t happen [today] because I think the evidence is so compelling. The judge just didn’t have the chance to prepare himself the way he usually does,” the plaintiffs’ attorney Mark Rifkin told The Hollywood Reporter.

Still, the hearing delved into the complex questions of whether the 19th-century songwriters could be found to have let the song enter into public use. One point of contention is precisely who should be considered the creator of “Happy Birthday.”

What the Hill sisters wrote for their 1893 book Song Stories for the Kindergarten in fact wasn’t “Happy Birthday,” but a song titled “Good Morning to All” with the melody of “Happy Birthday.” Then in singing with her students, Patty introduced new lyrics including the “Happy Birthday” version (and “Happy Vacation to You,” “Happy Journey to You” and others).

So should “Happy Birthday” be considered the sisters’ joint work? Or Patty’s “derivative” work? This is relevant to the question of abandonment because Warner/Chappell contends if the sisters jointly wrote the work, they both would have to give up their claim for the work to enter the public.

Warner/Chappell unsurprisingly contends the sisters jointly wrote the work. The music publisher contends Patty and her other sister Jessica (who inherited the rights to “Good Morning to All” when Mildred died) co-controlled the work because Patty and Mildred wrote the first version with the intent other lyrics could be substituted. The publisher’s attorney Kelly Klaus said “Happy Birthday” fits the definition of “joint works” in U.S. copyright legislation, works with “inseparable or interdependent” parts by two authors, and cited case law distinguishing joint works and composite works.

Rifkin thinks Mildred’s contribution to the song ended with the melody and points out the sisters never published “Happy Birthday” under both their names. “If Mr. Klaus’ argument is no one can change or add to a joint work without it becoming a new joint work, there’s no authority for that,” said Rifkin. “‘Happy Birthday’ was a derivative work, not a composite work and not a joint work.”

Then there’s the question of whether Patty (or Jessica) really did give up the song for public use. Rifkin pointed out numerous instances in which Patty said (or was said to have said) she no longer sought to protect “Happy Birthday,” including New York Times and TIME stories and her deposition in the lawsuit her family’s Hill Foundation filed decades ago against Summy over the rights.

Press interviews don’t necessarily mean anything legally (which King pointed out), but ignoring these comments wouldn’t hold up “any more than you’d look at a tree and say, ‘that’s not a forest,’ and look at another tree and say, ‘that’s not a forest,’ and look at another tree and say, ‘that’s not a forest,’ while you’re standing in the middle of a forest,” said Rifkin.

Responded Klaus: “You aren’t putting together tree, tree, tree and saying, ‘Aha, I’ve got a forest I’ll call an overt act [of abandonment].’ You’ve got to have that overt act.” He argued the articles and the deposition are insufficient.

The judge took the issues under consideration. No further hearing yet is scheduled. Klaus and Warner/Chappell declined to comment outside the courtroom.