If you sang Happy Birthday to someone in a public place recently, you may be off the hook for infringement.  The Hollywood Reporter ran a story today about the ongoing legal battle between Good Morning to You Productions Corp. and Warner/Chappell.

In case you didn't realize that the Happy Birthday song is big business, Warner/Chappell reportedly collects around $2M per year licensing the song for various uses.

You may have heard about this dispute when it started back in 2013.  It arose when Jennifer Nelson's documentary film company – who was producing a film about the history of the song Happy Birthday – was required to pay a $1,500 license fee to Warner/Chappell.   The New York Times ran a piece on the lawsuit back in 2013.  Ms. Nelson's company brought a class action lawsuit against Warner/Chappell seeking invalidation of the copyright in Happy Birthday and return of all the license fees paid to the company over the last several years.  One of the critical issues was whether the copyright to the song had been contributed to the public by the authors.  Under the Copyright Act of 1909, if a work was published without a copyright notice, then the copyright was considered in the public domain.  More interesting information about this fascinating, and, generally, highly irrelevant statute may be found on wikipedia.

Yesterday, Ms. Nelson's company filed a motion asking the judge to consider additional evidence in the form of a songbook that was published with the song in 1922. Warner/Chappell allegedly disclosed a version of the songbook just a few weeks ago (about a year after they were supposed to produce it).  According to the motion filed by Ms. Nelson's company, a copy of the songbook was produced, but the legend at the bottom was smudged so that it was not legible (In lawyer-speak, Ms. Nelson's attorneys also accuse the defendants of smudging out the attribution).  This caused Ms. Nelson's attorneys to begin looking for old copies of the same book.  According to Ms. Nelson's attorneys, based on this document they searched for and found a copy of the 1922 edition of the songbook, which included the song but did not have a copyright notice.  Under the 1909 Act, this would mean the copyright in the lyrics and the arrangement was invalid.  Probably the most famous (and in my opinion, the creepiest) rendition of Happy Birthday is below.

In case you read about this case and had concerns about your own copyrights (software, photos, songs, recordings, etc.), you don't have much to worry about.

Here are the main reasons:

  1. The 1976 Copyright Act did away with the marking requirement to copyright protection and instead automatically triggered copyright protection when the work is "fixed in a tangible medium of expression."  Section 102.
  2. The 1976 Copyright Act also did away with copyright renewals for works created after January 1, 1978.
  3. Under the 1998 Amendment to the Copyright Act of 1976, the term of copyright was extended to the life of the author plus 70 years or, if the work was authored by a company, 120 years from creation.

Essentially, all of the facts that gave rise to the challenges to the copyright in Happy Birthday no longer exist for works created after January 1, 1978. So you can rest easy.

Soon, and with any luck, you may also be able to sing Happy Birthday at the top of your lungs (or in whatever creepy way) you want without owning any royalties at all.

I'll bet Warner/Chappell wishes they had just acknowledged that Ms. Nelson's documentary was a  fair use of the song.  After all, I can't imagine watching a documentary about the song Happy Birthday on my actual birthday!  Not even if it was raining.

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