Last year we wrote about Good Morning to You Productions’s class action lawsuit against Warner/Chappell Music over that ubiquitous song “Happy Birthday to You”. Well, the wheels of justice turn slowly, but they do turn. The parties completed discovery and each filed a motion for summary judgment, asking the court to decide the dispute as a matter of law. But the action didn’t stop there.
You might have read news stories about the drama that unfolded after the parties filed their motions. The court heard argument in March. In May, the court directed the parties to file additional briefings focused on a specific question: Did the author of the lyrics, Patty Hill, abandon whatever copyright she may have had during her lifetime? 
The parties submitted their arguments in June, and the judge indicated that the parties could not submit additional information. But that did not stop a flurry of submissions in July.
According to court filings, defendant Warner/Chappell gave documents to the plaintiffs after briefing concluded. The plaintiffs claim that those documents given to them late in the game provided proof that “Happy Birthday to You” is not subject to copyright protection. The plaintiffs accordingly filed a motion asking the court to consider the new documents.
A Tale Of Two Copyright Acts
To understand why the plaintiffs risked the judge’s wrath in filing additional supplemental material, it helps to understand some basics of federal statutory copyright law. Statutory copyright protection in the United States is as old as the nation itself. The Constitution gives Congress the power to enact laws establishing a system of copyright. The Copyright Act was originally enacted by Congress in 1790 and has been amended and revised several times, with notably important revisions in 1909 and 1976.
There is a major difference between the 1909 Act and the 1976 Act that is applicable to this case. Under the 1909 Act, if an author or someone with the author’s consent published a work without a copyright notice on it, then that publication put the work into the public domain. It could not later be registered for copyright protection. In other words, copyright protection was not automatic; it required authors to claim copyright protection with conspicuous use of the copyright notice. The 1976 Act removed that part of the statute.
You might see where this is going. “Happy Birthday To You” was created when the 1909 Act was in effect. If it were published without a notification of claimed copyright before it was later registered, it would be considered part of the public domain and could never be eligible for copyright protection.
Public Domain Or Not?
So let’s go back to the case. Much of the March summary judgment briefing focused on the scope of the registered copyright (the plaintiffs claim that it only covers the music, not the lyrics) and whether the registered copyright is valid at all. The arguments are relatively complex, particularly as they pertain to scope.
But in July the plaintiffs informed the court they had obtained documentation that could throw the complex scope arguments out the door: proof that “Happy Birthday To You” was published in the 1920s with the knowledge and consent of the authors but without any copyright notice. If true, the game is over under the 1909 Act, regardless of the scope of the 1935 registration.
The first document was from Warner/Chappell’s late production. It is a copy of pages from a 1927 songbook containing “Happy Birthday To You” with a blurred legend that the plaintiffs could not read. Curious about the legend, the plaintiffs hunted for a better copy in libraries across the country and ultimately discovered not only the 1927 book but also a 1922 version. It turned out the blurred legend was not a copyright notice. While other songs published in the books contained copyright notices, the versions of “Happy Birthday To You” noted only that they were published with permission. Under the 1909 Act, that’s not enough. The plaintiffs argue that these documents prove that not only is “Happy Birthday To You” in the public domain now, it always has been.
As of today, the court has not ruled on any of the pending motions for summary judgment or on whether it will consider the new documents. We’ll keep watching this case as it proceeds.