Dr. Trademark Dear Doc:

I took my daughter out to dinner for her birthday at a local eatery (that’s what they call a restaurant when they want to charge more for the same old burritos) and at the end of the meal, all of the servers gathered around, slapped a sombrero on her head, and sang some stupid birthday song set to the tune of “La Cucaracha”. Not that I have anything against insects, mind you, but why, oh why can’t they just wish the kid happy birthday in the traditional American way? The manager claims that he does not want to pay royalties to Warner Music for publicly performing a copyrighted song. So, what gives? Do we get to sing “Happy Birthday” to my kid before she is ready to collect Social Security?

Signed,
Happy Birthdad, to you.

Dear Hap,

I share your pain and frustration over this issue of burning importance, and so, apparently, does a newly formed company called, “Good Morning to You Productions Corp.” That company has filed a class action lawsuit against Warner/Chappell Music seeking the return of millions of dollars collected in royalties, and a determination that Happy Birthday To You is no longer protected by copyright.

The company is making a documentary film about the history of Happy Birthday. They were told by Warner that if they wished to use the song in their movie, they would have to pay $1,500.00 for a “synchronization license.” Fail to pay, and the law says that you may have to cough up as much as $150,000 in statutory damages. Chump change for Lucas or Spielberg, but for churchmouse-poor documentarians, that’s an awful lot of ramen noodles. So, in a wonderful case of art-imitates-life-imitates-art (or some such existential nonsense) GMTYPC hired lawyers to go after big, bad Warner/Chappell.

Here, in a nutshell (or at least a complicated paragraph) is what they claim: In 1893, Patty Smith Hill and Mildred Hill wrote a ditty called, “Good Morning To All.” They sold the rights to the song and it appeared in a book called “Song Stories for the Kindergarten” which was registered for copyright in 1894. Years later, the words “Happy Birthday” were substituted for “Good Morning” and in 1911, the Board of Sunday Schools of the Methodist Episcopal Church published the full “Happy Birthday” version, referencing a book called “Song Stories for the Sunday School” by Patty Hill. The Church filed for a copyright on this in 1912. According to the plaintiff, all of those copyrights either expired or were never renewed. In 1924, these lyrics appeared in another published song book. In 1935, a piano arrangement of the song was published. Under the current copyright law, works published after 1923 get 95 years of protection. But, GMTYPC alleges in its law suit that it has “irrefutable documentary evidence” (which is a good kind of evidence for a documentary film maker to have) that if there was ever a valid copyright on Happy Birthday To You, it expired in (drumroll) 1921, and all that Warner/Chappell ever owned, if it had anything, is a right to copy and distribute that 1935 piano arrangement. Period.

So what does GMTYPC want? They say that a class of everyone who has paid Warner/Chappell exists, and that Warner/Chappell collects more than $2 million per year in royalties on Happy Birthday – and that they class should get its money back (less, of course, really big legal fees). They want the court to declare that Happy Birthday is no longer protected by copyright and is in the public domain. And a bunch of other legal stuff.

As for the Doc, he can’t wait for the movie to come out…who knew that copyright law could be as thrilling as The DaVinci Code?

Have a copyright or other intellectual property law thriller? Ask the attorneys at Lipton, Weinberger & Husick – they’re pretty thrilling folks in their own right!

— Lawrence A. Husick, Esq.