This week, Judge King granted summary judgment to the plaintiffs in Marya v. Warner/Chappell Music, Inc., ruling that Warner/Chappell does not own a valid copyright to the lyrics to “Happy Birthday.” For those of you not familiar with summary judgment, that means that the court decided the case as a matter of law – meaning there was no dispute of fact that could change the legal outcome.
As I wrote last week, the case had lots of dramatic twists and turns and involved some relatively complex issues of copyright law. But in the end it was a simple question of rights transfer that won the case. So, if you’d prefer to not read the forty-three page opinion, here’s the breakdown.
A Tale Of Validity And Scope
Remember there were essentially two legal issues in the case: Did Warner/Chappell have a valid copyright and, if so, did that copyright include both the music and the lyrics to “Happy Birthday To You?” The parties agreed that the basic melody to the song, borrowed from a song called “Good Morning To You” that was written sometime before 1893, has been in the public domain since 1949.
Plaintiffs argued that the “Happy Birthday To You” copyright registered in 1935 covered only the specific piano arrangement of the song, not the lyrics. Warner/Chappell argued that it covered both the arrangement of the song and the lyrics, too. On that basis, they have been earning more than $2 million a year in royalty payments from people using the song in television, movies, plays, and other public performances.
It was up to Warner/Chappell to prove both the validity and scope of its copyright. Plaintiffs argued variously that:
- the author of the lyrics was not included in the copyright registration and that authorship of the lyrics is unclear
- the lyrics were published without a copyright notice, thus denying the claimed authors of any copyright
- the copyright had been abandoned
- the rights had never been transferred from the author(s) to the defendant
Although the press coverage focused on the first three arguments, it was the fourth that carried the day.
Authorship, Divestive Publication, and Abandonment (Oh My!)
Defendants claim, and it has long been popularly believed, that school teacher Patty Hill wrote the lyrics to “Happy Birthday To You,” while her sister Mildred wrote the music. Plaintiffs pointed out that the lyrics were published many times between 1911 and 1928 with no attribution to any author. Defendants offered 1935 testimony of Patty Hill describing how she wrote the lyrics. The court stated that this contradictory evidence created an issue of fact for a jury to determine at trial.
But, assuming that Patty Hill was the author, the plaintiffs argued that she lost her rights to the lyrics by publishing them – something called divestive publication under the 1909 Copyright Act. Remember that newly discovered, bombshell evidence that plaintiffs claim definitively showed divestive publication in 1922?
Well, the court decided to consider the evidence even though it was filed late, but ultimately, said it only created a disputed issue of fact. The court also noted that Warner/Chappell raised a valid argument that there was no direct evidence that the Hill sisters granted permission for that publication, so a reasonably jury could find either way with respect to whether that publication was divestive.
The court then addressed the argument that, even if the 1922 publication was not divestive, Patty Hill publicly abandoned any claim to copyright in the lyrics. Under copyright law, an author can lose rights in a copyrighted work by taking action to surrender those rights. Plaintiffs pointed to an article in the news magazine Time that paraphrased Patty Hill as stating that she had resigned herself to the fact that the lyrics had become “the property of the nation.” Again, the court held that this article only raised issues of fact to be decided by a jury, because a jury could find that the journalist mischaracterized her statements or intentions.
All of these issues, which received a significant amount of coverage in the press, didn’t result in a judgment for either side. So what did?
It All Goes Back To The Transfer Of Rights
Remember that there is a long chain of ownership here. The holder of the copyright and defendant in this case is Warner/Chappell. But they did not file the 1935 copyright, they acquired it from successors of the Clayton F. Summy Company. And Summy claimed to have acquired rights from the Hill Foundation, which claimed to have acquired rights from the Hill sisters, including Patty Hill. Whew!
Plaintiffs argued that there is no evidence that the Summy Company ever obtained rights to the lyrics from the Hill sisters. The Court agreed.
There is evidence that the Hill sisters and/or their Hill Foundation entered three agreements with the Summy Company over time, although no copies of the first and second agreements exist. The parties agreed that the first allowed Summy to publish sheet music for “Good Morning to All” in a book called “Song Stories for the Kindergarten.” The lyrics to Happy Birthday did not appear in that book. The third, a 1944 agreement that the court did have a copy of, transferred to Summy all rights the Hill Foundation had in eleven previously copyrighted works.
Warner/Chappell relied on the second agreement, which was entered into by a third Hill sister, Jessica, on behalf of the Hill Foundation in 1934 or 1935. The only evidence as to the contents of that agreement came from pleadings in a royalty dispute lawsuit between the Hill Foundation and Summy in 1942. The pleadings described the second agreement as granting Summy licenses to publish or perform “various piano arrangements” of the song and did not mention the lyrics. The court held that based on the evidence in the record, no reasonable juror could find that the second agreement transferred any rights in the lyrics to “Happy Birthday To You.”
The court also noted that there was no evidence in the record that the parties intended the lyrics to be covered by the second agreement and that there was no evidence that the Hill sisters at any time took action to protect the lyrics between the time they were written through the time of the second agreement with Summy. Accordingly the court concluded that the Hill sisters gave Summy only the rights in the music in the form of various arrangements based on the melody, but not the rights to the lyrics.
Because no rights in the lyrics were ever transferred to Summy, it could not have included them in the 1935 copyright. Accordingly, Warner/Chappell, as its the successor to Summy, could not hold a valid copyright to the lyrics of Happy Birthday to You.
Warner/Chappell has said that they are reviewing the opinion to determine whether they might appeal. Meanwhile, the plaintiffs’ attorneys are gearing up to have the case certified as a class action to start the process of recovering millions in licensing fees that have been paid over the years. We’ll keep following the case for more interesting issues in copyright law.